The Court has the discretion to consider objections to the Commissioner's report at the pre-trial stage or thereafter, depending on the circumstances of each case.

Harish Tandon, J.

1. The defendants/petitioners have assailed the order dated January 4, 2013, passed by learned Civil Judge (Junior Division), 2nd Court, Sealdah by which an application for non-acceptance of the Commissioner's report, is rejected by the Trial Court.

2. The point which emerges for consideration in this revisional application relates to the stage at which the objection to the Commissioner's report should be entertained by the Court.

3. Before dealing to determine the aforesaid point, the salient facts of the case are adumbrated below:

The plaintiff/opposite party filed Title Suit No. 178 of 2002 in the Court of learned Civil Judge (Junior Division), 2nd Court, Sealdah seeking a decree for declaration that the agreement dated February 25, 1998, is valid and binding upon the defendants/petitioners. Further relief in the form of a decree for permanent injunction is also sought restraining the defendants from creating any obstruction to the right of user of staircase from ground floor to first floor and also in respect of a roof. The suit premises comprises of the ground floor plus three stories building constructed at the premises No. 3C Bipin Mitra Lane, P.S. Ultadanga, Kolkata- 700 004 which was originally owned by the plaintiff and one Ranjit Roy, having undivided equal share which they acquired on the strength of the deed of partition dated April 26, 1996. The plaintiff stated that he was allotted a ground floor and the first floor excepting the existing staircase from ground to third floor and both of them were having undivided half share in respect of the entire premises. The said deed further provides that the plaintiff/opposite party shall construct an independent staircase from the ground to first floor. Subsequent thereto, an agreement was entered into between the plaintiff and the said Ranjit Roy by which the plaintiff/opposite party was permitted to use the existing staircase from ground floor to first floor only. In order to implement and/or effectuates the terms of the said deed of partition, subsequently, the said Ranjit Roy, transferred his share to the defendants/petitioners jointly together with all the incidents and rights appertaining thereto under the said partition deed and the subsequent agreement. The plaintiff/opposite party alleges that the defendants/petitioners are creating obstruction in very egress and ingress from the staircase to the roof and filed the aforesaid suit with the prayer as indicated herein above.

4. The defendants/petitioners took a defence in the written statement that the terms and conditions embodied in the said partition deed and the subsequent agreement are binding upon the plaintiff/opposite party and he has no semblance of right to the roof nor has a right to use the staircase beyond the first floor.

5. An application for investigation under Order 26 Rule 9 of the Code of Civil Procedure was filed by the plaintiff/opposite party which was eventually allowed and a Engineer Commissioner submitted the report.

6. By filing separate applications, various objections to the report were taken out which has been rejected by the impugned order. From the impugned order, what could be deciphered is that the Trial Court rejected the said application as the report of the Commissioner is an evidence in the suit and is a part of the record. The Trial Court further recorded that Sub-Rule 2 of Order 26 Rule 10 of the Code is mandatory whereas Sub- Rule 3 is directory in nature.

7. Mr. Bidyut Kumar Banerjee, the learned Senior Advocate assailing the said order submits that the Trial Court has proceeded as if the report filed by the commissioner should be accepted as a piece of evidence and be formed the part of the record without entertaining the objection so raised. According to him, if an objection is raised, the Commissioner should be directed for examination and it is only after overruling the objections, the report should be accepted. Lastly, he submits that the course adopted