Objections to the report of a local commissioner appointed under Order 26 Rule 9 of the Code of Civil Procedure are not maintainable.

J.V.GUPTA, J.

1. This petition is directed against the order of the trial Court dated 24th Sept. 1988, whereby on the objection petition filed by the-defendant petitioner against the report of the local commissioner an issue was framed and the defendant was directed to produce his evidence on the said issue.

2. The plaintiff filed a suit for partition. He concluded his evidence and when the case was fixed for defendant s evidence he filed an application for the appointment of the local Commissioner for demarcation of the suit property as provided under Order 26 Rule 9 of the Code of Civil Procedure (for short the Code ). Consequently, Tehsildar, Karnal was appointed as local commissioner and he submitted his report, Objections were raised against the said report and thereafter the trial Court appointed Tehsildar (Sales) Karnal as the local commissioner who submitted his report dated 25th Nov. 1987. Against this report objections were filed by the defendant-petitioner. The main objections were that the local commissioner has not demarcated the land as per instructions of the Financial Commissioner and the High Court Rules and Orders Vol. I, Ch I-M. He also submitted that the local commissioner has not given notice to the parties and the report was submitted in their absence. Reply to the objection petition was filed by the plaintiff-respondent who took up the plea that the local commissioner has demarcated the suit land strictly in accordance with the above provisions of law and notice was given to the defendant-objector who was present and an affidavit to this effect is on the file. So there is nothing to set aside the report of the local commissioner. The objections have been filed just to delay the proceedings in the case.

3. The trial Court framed the following additional issue on the point of the report of the local commissioner :

"Whether the report of the local Commissioner dated Aug. 23, 1988 is liable to be set aside."

O.P. Objector-defendant. Dissatisfied with the same the defendant has filed this petition in this Court.

4 According to the learned counsel for the petitioner, the objections should have been decided first before directing the parties to lead evidence on this issue. While sitting singly, certain judgments were cited on behalf of the petitioner in support of the said contention. After considering the said judgments, I was of the view that it requires reconsideration because the said practice of inviting objections, framing issue and calling for evidence was against the provisions of O.26 Rr.9 and 10 of the Code. Not only that, this practice unnecessarily delays the proceedings which was not warranted by the provisions of the Code. Consequently, the case was referred to a larger Bench to resolve this conflict. It is how this case has come up on reference before this Bench.

5. The learned counsel for the petitioner submitted that though there may not be any specific provisions for inviting objections under.R.10 of O.26 of the Code, if a Commissioner is appointed under R.9 of O.26 of the Code but a reading of .R. 10 thereof as a whole does contemplate that the objections may be filed against the report of the local Commissioner. According to the learned counsel this is necessary in the larger interest so that the Court may form its opinion on the basis of the objections, also whether the said report should form part of evidence in the suit or not. According to the learned counsel this longstanding practice could not be said to be without any reason. In support of this contention, he referred to Ram Gopal V/s. Pawan Kumar, 1983 Har Rent R 6, National Institute of Sports V/s. Preminder Singh, 1982 Cur LJ 677 (Punj and Har), Waryam Singh V/s. Lachhman Dass S.A.O. No. 52 of 1962 decided on 4th February, 1966 (Punj and Har) Ashutosh V/s. R.C. Dey, AIR 1953 Pat 133 and Harbhajan Singh V/s. Smt. Shakuntla Devi, AIR 1976 Del 175. On the other hand, the learned counsel for the respondent cited Jawahar Lal V/s