The court has a duty to decide whether to accept or reject a pleader-commissioner's report before proceeding to hear a suit on merits.

S. ACHARYA, J.

( 1 ) THE defendants in the suit are the petitioners in this Civil Revision.

( 2 ) THE defendants filed a petition on 20-11-79 asking the court below to at first hear the parties regarding the acceptance or non-acceptance of the pleader-commissioner's report submitted in this case before proceeding to hear the suit on merits. The court below has rejected the said petition stating that the said petition was filed at a late stage; the pleader-commissioner's report can be treated as a piece of evidence at the hearing of the case; and it is not necessary to at first hear the parties on the question of acceptance of the pleader-commissioner's report and decide that question before proceeding to hear the suit on merits. Hence this Civil Revision.

( 3 ) MR. Dey, the learned counsel for the petitioners, submits that the court was not justified to hear the suit on merits without at first recording an order either accepting or refusing to accept the pleader-commissioner's report. Admittedly, the pleader-commissioner's report is in favour of the petitioners. After the said report was filed in the court, the plaintiffs (opposite parties herein) filed objection against the acceptance of the same in evidence. Undisputedly, that objection was never taken up for hearing and that matter was never disposed of and is pending till now. The petition for deputing the pleader-commissioner was made by the defendants under Rule 9 of Order 26, c. P. C. and that petition was not opposed by the plaintiffs, as is specifically mentioned in the order dated 22-2-77 of the trial court. The plaintiffs filed objection to the report of the pleader-commissioner on 12-7-77, but that objection was never taken up for hearing. Sub-rule (3) of Rule 10 of Order 26, c. p. C. says that where the court is. for any reason, dissatisfied with the proceedings of the commissioner, it may direct such further enquiry to be made as it shall think fit. Therefore, this Sub-rule (3) postulates that the court should at first make up its mind regarding acceptance or otherwise of the pleader-commissioner's report submitted to the court in accordance with the order of that court, for if the court is dissatisfied with the proceedings of the commissioner or his report it may reject the same, in which case one of the parties to the suit may again move the court to take out a fresh commission for the proper assessment and investigation of the matter for which the pleader-commissioner had been deputed. The observation made by B. K. Ray, J. on a similar matter reported in (1978) 46 Cut LT 1, is as follows :-

"after the commissioner submits his report, the trial Court will first of all decide if the report submitted will be accepted as a piece of evidence. If the trial court accepts the commissioner's report as a piece of evidence, after hearing the parties it shall then proceed to dispose of the suit in accordance with law after giving the parties an opportunity once again to be heard on the entire evidence on record. In case the commissioner's report is not accepted, the trial court will give the plaintiff an opportunity, if permissible under the law to take out a fresh commission, and thereafter dispose of the suit as indicated above. "

I am in agreement with (he above observation.

( 4 ) MR. Mohanty, the learned counsel for the opposite parties, contends that the said observation was made in respect of a commissioner's report submitted under Rule 10 of Order 26, C. P. C. , but the commissioner's report in this case is not under that provision but it is under Rule 7 of Order 39, C. P. C. as the purpose of deputing the commissioner was only to inspect the suit site and that being so the said report is not to be treated as evidence in the case so long one of the parties does not prove the same in accordance with law, and hence it was not necessary for the court either to accept or reject it before actually proceeding to hear the suit on merits. In this connection Mr. Mohanty s