The main legal point established is that the refusal to allow examination of the Pleader Commissioner and the decision to defer consideration of the objection to the Pleader Commissioner's report to the time of final decision were contrary to Order 26 Rule 10 CPC and established legal principles.

Heard Mr. J.K. Verma, learned Counsel for the petitioner, and Mr. Chandra Kant, learned Counsel appearing for the respondents.

2. The legal sustainability of the impugned orders by which the learned court below has refused the prayer of the defendant for examination of the Pleader Commissioner and has further directed for consideration of the report of the Pleader Commissioner along with objection on behalf of the petitioner at the time of decision of the suit, has been questioned in the present application under Article 227 of the Constitution of India.

3. The matrix of facts discloses that T.S. No. 20 of 2011 has been filed by the plaintiff-respondent for declaration of title over the suit land and further for removal of encroachment from the suit land described in Schedule ‘Ka’ Item I and for grant of injunction with regard to the suit land described in Schedule ‘Ka’ Item II. During pendency of the suit, the prayer of the plaintiff for appointment of the Pleader Commissioner was allowed and the Pleader Commissioner was appointed, in spite of objection by the defendant, who submitted his local inspection report. The defendant filed his objection to the said report of the survey knowing Pleader Commissioner on 21.9.2012 and thereafter another petition was filed on 25.7.2013 on behalf of the defendant praying for examination of the Pleader Commissioner and for the said purpose for issuing Dasti Summon to the said survey knowing Pleader Commissioner. From the order sheets as enclosed at Annexure 1 series, it transpires that on 9.1.2014 the Pleader Commissioner could not be present and a prayer was made on behalf of the defendant for fixing another date for his examination. However, the said prayer of the defendant was allowed by the learned court below by imposing cost on the defendant and granting him the last opportunity for examination of the said Pleader Commissioner. It further transpires from the next order dated 10.2.2014 that the learned court below refused to grant adjournment for examination of the said Pleader Commissioner and declined to extend the time for his examination and ordered for consideration of the objection to the Pleader Commissioner’s report at the time of decision of the suit. The defendant-petitioner filed a review petition for review/recall of the said order, which was also rejected by the order, dated 15.5.2014.

4. The present application under Article 227 of the Constitution of India has been filed on 12.7.2016 praying for quashing of the aforesaid orders dated 10.2.2014 and 15.5.2014.

5. Mr. Verma, learned Counsel for the petitioner has submitted that the impugned order suffers from the vice of perversity in as much as the learned Court below has manifestly treated the said Pleader Commissioner to be a witness on behalf of the defendant-petitioner even when the said Pleader Commissioner was appointed by the court on the prayer of the plaintiff-respondent and the defendant-petitioner has only made a prayer for his examination after filing the objection to the report submitted by him. It has further been also canvassed that the direction for consideration of the objection to the report of the said Pleader Commissioner at the time of decision of the suit is itself contrary to the provision as contained under Order 26 Rule 10 CPC and the principle in this regard has also been laid down by this Court in the case of Jagdish Bhagat & ors. Vs. Sri Baijnath Rai & ors, 2007 (3) PLJR 719, wherein it has been laid down that it is incumbent upon the court to decide the objection to the report of the Pleader Commissioner and not to defer it for determination at the time of final hearing of the suit. It has also been contended that though the defendant-petitioner has approached this Court belatedly and nearly after two years of delay, but that will not preclude the exercise of supervisory jurisdiction as envisaged under Article 227 of the Constitution of India. Elaborating the submission, it has been argued