IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1146 of 2008 SIDHENATH UPADHYAY & ANR Versus DEVENDRA UPADHAYAY & ORS ----------- 3 19.8.2008 Heard learned counsel for the petitioners. The grievance of the petitioners is that the impugned order dated 29.5.2008 with regard to the appointment of survey knowing pleader commissioner in exercise of power under Order 26 rule 10 CPC is vitiated because the rejoinder filed by the petitioners- defendants was not taken into consideration. In the considered opinion of this court, such submission of counsel for the petitioner is fit to be rejected on two scores namely, when an application was filed by the plaintiffs-opposite parties for appointment of pleader commissioner, time was given to the defendants-petitioner for filing a rejoinder but the same was not filed within the prescribed time and thereafter when on 29.5.2008 the court had already passed an order, the petitioners rushed for filing copy of the rejoinder even without service of the same on the counsel for the other side i.e. plaintiffs-opposite party. - 2 - In that view of the matter if the court below has treated the prayer of the plaintiffs-opposite party to be reasonable and unopposed and has passed an order for appointment of pleader commissioner in exercise of power under Order 26 rule l0 CPC, the same can not be said to be vitiated on account of any jurisdictional error. This Court, however in order to appreciate the grievance of the petitioners, has looked into the application filed by the plaintiff-opposite parties seeking appointment of the pleader commissioner and the rejoinder which was later on filed by the petitioners in the court below and from a bare reading of paragraph 2 of the application and its reply in paragraph 8 it becomes clear that there was no real objection on behalf of the petitioners inasmuch as the petitioners were still of the view that the revisional survey map was neither authenticated nor the same was still in process for re-determination in course of survey procedure. In such view of the matter, even if the plea raised by the petitioners in their rejoinder ought to have - 3 - been noticed by the court below the result could not have been different. In that view of the matter, this Court does not find any merit in this civil revision application and the same is hereby dismissed. shahid (Mihir Kumar Jha, J)