D.G.R. Patnaik, J.
1. Heard counsel for the parties.
2. The petitioners in this writ application, have challenged the order of the Sub-Judge-I, Dhanbad passed in Title Suit No. 29 of 2005, whereby the learned court below had allowed the prayer of the plaintiff/respondent for appointment of Pleader Commissioner under the provisions of Order 26 Rule 9 CPC read with Section 151 CPC.
3. It appears that earlier, this issue was finally decided by this Court vide order dated 16.11.2005 whereby, upon hearing the counsel for the parties, this Court had set aside the order of appointment of the Pleader Commissioner.
However, upon an application filed by the plaintiff/respondent for review of the order dated 16.11.2005, an interim order was passed by this Court not only staying the further proceedings of the Title Suit before the court below, but for maintaining the status quo.
As it appears from the submission of the learned Counsel for the petitioners, the main plea taken by the petitioners is that the question of appointment of a Pleader Commissioner and that too, for the purpose of collecting materials for hearing an interlocutory application for grant of injunction, is totally illegal and contrary to law, even as envisaged under the provisions of Order 26 Rule 9 of the CPC.
4. Learned Counsel for the petitioner would argue that it is well settled by a catena of decisions of this Court as also of the Supreme Court that while taking a decision under the provisions of Order 26 Rule 9 of the CPC, the trial court is obliged to confine its attention to the pleadings of the parties and not upon any extraneous matters.
Counsel for the petitioners explains that the plaintiff/respondent had filed the suit for declaration of his right, title and interest over the suit property and also for the delivery of possession. Almost soon after filing of the suit, the plaintiff/respondent had filed an application seeking an order of injunction against the defendants/petitioners for restraining them from raising any construction over the suit land. The petitioners/defendants promptly responded by making a firm statement that they have not indulged in raising any new construction over the suit land and if at all, they have only made repairs of the existing structures. Learned Counsel adds that in the light of the aforesaid categorical statement, there could be no further reason for the plaintiff/respondent to pursue with his prayer for injunction and neither could there be any further scope for the plaintiff/respondent to seek appointment of a Pleader Commissioner for verifying any facts which the plaintiff may have imagined. It is further submitted that the appointment of the Pleader Commissioner cannot be made for the purpose of collecting further materials to ascertain certain disputed facts. In support of this argument, learned Counsel reefers to and relies upon a judgment of this Court in the case of Indian Oil Corporation Ltd v. Kamlakar Dubey 1984 PLJR 900.
5. Counsel for the respondent/plaintiff, on the other hand, would want to explain that had the defendants/petitioners given a categorical statement that they had not indulged in any new construction over the suit land, then the matter would have ended. But instead, the defendants/petitioners, while acknowledging the fact that they have indulged in certain fresh construction, have tried to give a diabolical explanation by stating that construction has been made by way of renovation/repairs of the existing structures and it is only for the purpose of ascertaining as to whether the fresh constructions are by way of raising any new construction or by way of repairs/renovation of the existing structures, that the appointment of a Pleader Commissioner was sought for.
6. Learned Counsel adds further that since after the order of status quo, no further construction appears to have been undertaken by the defendants/petitioners and on account of stay of the further proceedings, the plaintiff/respondent has already suffered delay in disposal of the suit and therefore, he would assure that the plaintiff/respondent would not pursue with his prayer for injunction before the court below, if the order of status quo is vacated and the court below is directed to dispose of the suit within a reasonable time frame.
7. Counsel for the petitioner agrees to the proposal and assures that the petitioners/defendants would extend full cooperation to assist the court in early disposal of the suit.
8. Be that as it may, the issue before this Court is for deciding as to whether the impugned order of the court below suffers from any impropriety?
9. As has been explained, the purpose for appointing the Pleader Commissioner appears to be for ascertaining such facts which are beyond the pleadings of the parties.
10. In the case of Indian Oil Corporation (Supra), this Court had observed in the following terms:
5. ...It is well settled that interlocutory application for grant of temporary injunction, must be heard only on the basis of the pleadings averred in the plaint and our High Court has gone even to this extent that even amendments brought about in the plaint may not be looked into for determining the grant of injunction in favour of the plaintiff. It is too much for the plaintiff to ask the court to collect materials for hearing the injunction matter.
11. Considering the above enunciated principle of law, which, in my opinion, is applicable to the facts of the present case, I am satisfied that the impugned order does suffer from impropriety and cannot be sustained. Accordingly, the impugned order of the court below is hereby set aside. Furthermore, considering the fact that this suit has already suffered considerable delay, and also considering the assurance given by the counsel for the parties, that the parties would extend full cooperation to assist the court in an early disposal of the suit, the order of stay of further proceedings in the suit is hereby vacated. The trial court is directed to expedite the disposal of the suit and conclude it preferably within a period of six months from the date of this order. The parties shall extend their due cooperation for expediting the disposal of the suit, within the period stipulated above.