O. 39 R.7 CPC | Report Of Pleader Commissioner Can't Be Taken As Evidence While Deciding Suit: Orissa High Court

The Orissa High Court has clarified that the report submitted by a Pleader Commissioner, appointed under Order 39 Rule 7 of the Code of Civil Procedure (CPC), cannot be treated as evidence while deciding a suit, and utility of such report is confined to the limited purpose of inspection, preservation or detention of a suit property.While upholding an order of appointment of Pleader Commissioner for inspection of suit property, the Single Bench of Justice Radha Krishna Pattanaik held –“It is at the cost of repetition observed that the report of the Pleader Commissioner is, though, necessary to take a decision, while dealing with the I.A. filed by the petitioner under Order 39 Rules 1 and 2 CPC and for opposing construction over the suit land by the opposite parties but is to be utilized for the limited purpose as proposed and not beyond.”Case BackgroundThe petitioner is the plaintiff in the suit instituted seeking a relief of permanent injunction against the opposite parties in respect of the suit schedule property. He pleaded that the opposite parties though do not have any right, title, interest and possession over the suit property, yet they are contemplating to raise illegal construction over the land on the strength of an allegedly void gift deed and the resultant mutation Record of Rights (RoR).The Defendant No.1 in the suit (the first opposite party in this case) filed his written statement and claimed that the Defendant No.2 voluntarily executed the gift deed in favour of the school and delivered possession of the suit land. It was pleaded that the Defendant No.2 established the school and remained as its Headmaster. In order to receive recognition of school with a play-ground, he executed the gift deed in favour of the school. The petitioner, however, filed an interim application seeking temporary injunction against the opposite parties to restrain them from taking up any construction work over the suit property until disposal of the suit. In the said interim application, the opposite parties moved an application under Order 39 Rule 7 of CPC to depute a Pleader Commissioner to inspect and report the topography of the suit land.The opposite parties claimed that a school is situated over the said property, while the petitioner pleaded that the suit property is paddy field and no school exists there. Therefore, the opposite party prayed the trial Court to depute the Pleader Commissioner for necessary inspection. Accordingly, the Civil Judge (Junior Division), Nimapara allowed such prayer and appointed the Pleader Commission to inspect the suit property and report back as to whether it has school over it or it is a paddy field.The petitioner filed this petition impugning such order. He contended that the appointment of the Pleader Commissioner would tantamount to collection of evidence through the process of the Court on behalf of the opposite parties, and the same is not permissible under law. Thus, the question which arose for consideration was whether the trial Court was justified in deputing the Pleader Commissioner.Court's FindingsTo decide as to whether the deputation of the Pleader Commission can be sustained in the eyes of law, the Court went through a number of precedents including the one in Amiya Bhusan Tripathy Vrs. Ahammad Ali, 1986 (II) OLR 330 wherein the High Court had held that a commissioner may be appointed for a limited purpose and the report received as a result cannot to be treated as evidence.The Court held that inspection of a Commission as per Order 39 Rule 7 CPC is obviously for a limited purpose either for detention or preservation or inspection of a suit property. A report of the Pleader Commissioner received by the Court is often utilized in reaching at a particular decision. Thus, such report may not be evidence similar to the provision under Order 26 CPC, but in a given circumstance, it may be treated as such for a limited purpose.In the present case, the petitioner claimed the suit property to be a paddy land while the opposite parties pleaded that it contains a school building. Therefore, the Court held, in order to ascertain as to whether there is in fact a school building over the said property, it is proper to appoint a Pleader Commissioner.“The report of the Commissioner under Order 39 Rule 7 CPC may not be treated as evidence in the suit but to tackle the issue at hand, while considering an application for injunction moved by the petitioner, such an exercise by learned Court below cannot be said to be wrong or erroneous,” it held.Hence, the Court reiterated that report of the Pleader Commissioner can be used for a limited purpose, i.e. inspection as to existence of school building in this case, which cannot be led or accepted as evidence while deciding the suit.Case Title: Ramakrushna Nayak v. Manoj Kumar Behera & Anr.Case No: CMP No. 200 of 2024Date of Judgment: May 23, 2025Counsel for the Petitioner: Mr. S.K. Mishra, Senior Advocate along with Mr. J. Pradhan,...

O. 39 R.7 CPC | Report Of Pleader Commissioner Can't Be Taken As Evidence While Deciding Suit: Orissa High Court

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