IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.570 of 2005 OM PRAKASH GUPTA & ORS Versus RAM AWTAR KESHARI & ORS ----------- 10 30.09.2008 Heard counsel for the petitioners. No one appears for the opposite parties. In the opinion of this Court, a mere editorial type of comment in the impugned order while rejecting the prayer of the petitioner for appointment of Pleader Commissioner, does not seem to be proper applicable of mind by the Court below specially when there was an observation in his favour in the order dated 12.7.2004 in Civil Revision No. 1473 of 2003. Counsel for the petitioners would submit that as a matter of fact, P.Ws. 6, 7, 8, 10 and 11 have in their deposition with the help of documentary evidence, have clearly stated that the alleged encroachment is on the part of the land claimed by the plaintiffs, the Court below was at least required to consider them on their face value before rejecting such prayer of the petitioners. Specially when their such claim were also supported by documentary evidence, Annexure-2 and Annexure-6 to this Civil Revision application In the opinion of this Court, the concern counsel for the petitioners seems to be correct inasmuch as this Court in its earlier order dated 12.7.2004 in C.R. - 2 - 1473/2003 had made it clear that if the evidence laid by the plaintiffs-petitioners to the effect that the alleged encroachment is part and parcel of the land claimed by the plaintiffs, the Court below will consider the question of appointment of Pleader Commissioner to ascertain the factual position of the spot has not been correctly appreciated and acted upon. Infact such an observation has been rather casually brushed aside by the court below by only making a one line observation that no such evidence was on record. The Court below infact for the purpose was required to look into the evidence on records adduced by the petitioner on this point before passing the impugned order. That having been not done this Court would set aside the impugned order with a direction to the Court below to reconsider the prayer of the petitioners for appointment of Pleader Commissioner in the light of the earlier observation of this Court dated 12.7.2004 in Civil Revision application No. 1473 of 2003 and in the light of the evidence on record and pass an appropriate order in accordance with law. With the aforementioned observations and directions this Civil Revision application is disposed of. Bibhash (Mihir Kumar Jha, J.)