A report of a pleader commissioner appointed under Order 39 Rule 7 CPC for inspection of property is not required to be rejected for want of notice to the defendant, as it is not intended to be used as evidence under Order 26 Rule 10 CPC.

S. C. MOHAPATRA, J.

( 1 ) THIS revision by the defendant arises out of an order of the trial court refusing defendant's application dated 4-9-1985 for rejecting the report of the pleader commissioner dated 3-5-1984.

( 2 ) IN the suit for permanent injunction restraining defendant petitioner from interfering in any way in the possession of the plaintiff opposite party over the disputed land, the latter filed an application for ad interim injunction which was registered as Misc. Case No. 75 of 1984. An ex parte ad interim injunction was granted by the trial court. Though the date of appearance was fixed to 10-5-1984, petitioner had entered appearance on 26-4-1984. Without service of copy of the petition, plaintiff filed an application on 1-5 1984 in the Misc. Case for deputing a pleader commissioner to inspect the disputed property on the allegation that violating the order of injunction the defendant is constructing a wall over the, disputed land which would completely close the passage of the plaintiff. As the case was not posted to that date an advance petition was filed for bringing the record for consideration of the petition which is urgent in nature. The learned Munsif directed issue of a writ to a pleader commissioner on the same day. From the record, it is seen that a writ was issued in the form provided for such a writ, under Order 26, C. P. C. The commissioner went to the spot, made local inspection and submitted a report. The objection of the petitioner is also indicative of the fact that he treated the report to be one under Order 26, Rule 10, C. P. C.

( 3 ) THE trial court after hearing both parties held that without examining the commissioner, report cannot he treated as a part of the evidence, and therefore, the prayer of the petitioner to reject the same is not acceptable. Mr. S. S. Mohanty, the learned counsel for the petitioner submitted that the impugned order is not sustainable since no notice of the issue of commission has been served on the petitioner. Miss. Sujata Das, the learned counsel for the opposite party submitted that no interference is called for since the defendant shall get enough opportunity to assail the report as has been found by the learned Munsif in the impugned order.

( 4 ) I am not able to appreciate the contention of both the parties. The application for deputing a commissioner for inspection was filed in the Misc. case, No. 75 of 1984. It is not disputed before me that the ex parte ad interim order has now been vacated in appeal which has become final and an application for punishing the petitioner for breach of the ex parte ad interim order of injunction is pending consideration. Since the application for deputing a pleader commissioner was filed in the Misc. case. it can safely be inferred that the power of the court under O. 39, R. 7 C. P. C. was invoked. Merely because a writ was issued as required under O. 26 C. P. C. the nature of the power exercised shall not he enlarged. If the deputation of pleader commissioner is treated to be one under O. 26 C. P. C. it would cause no difficulty for me to direct rejection of the report since the order was passed without giving the petitioner an opportunity of being heard in spite of the fact that he had already appeared. Besides. the provision of O. 26, R. 10 C. P. C. has not been complied with by the Court. The taking of evidence in the locality, enquiries and inspection of the disputed property by the commissioner will not make his action one under O. 26 C. P. C. In this case, the trial court deputed the Commissioner under O. 39, R. 7 C. P. C. for inspection and thus, the report is to he treated as one under O. 39, R. 7 C. P. C. Once the report is under that provision, O. 26 C. P. C. is not attracted and it cannot be treated as a piece of evidence under O. 26, R. 10 C. P. C. The limited purpose for which the report has been called for is not over on the finality of the injunction matter. Getting the disputed property inspected under O.