Ram Ujagar And Another vs Smt.Kailasha And Others
2011 Latest Caselaw 1355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24
 

 
Case :- MISC. SINGLE No. - 108 of 2007
 

 
Petitioner :- Ram Ujagar And Another
 
Respondent :- Smt.Kailasha And Others
 
Petitioner Counsel :- Mohd. Saeed Ii,Mohammad Saeed-Ii
 
Respondent Counsel :- C.S.C.,Y.M.Singh
 

 
Hon'ble Rajiv Sharma,J.

Heard learned counsel for the parties.

By means of instant writ petition, the petitioners have assailed the order dated 20.9.2006 passed by the District Judge, Unnao in Civil Revision No. 139 of 2006 and the order dated 30.8.2006 passed by the Civil Judge (Junior Division), North, Unnao in Regular Suit No. 225 of 1992, as contained in Annexure Nos. 1 and 2, respectively, to the writ petition.

Undisputed facts are that husband of opposite party No.1, namely, Raja Ram and father of the opposite parties Nos. 2, 3 and 4 had filed a suit for permanent injunction , which was registered as Regular Suit No. 225 of 1992. Petitioner/Defendants contested the suit by filing written statement. During the pendency of the suit, an application for issuance of Commission was moved by the private/opposite parties, in which, a Survey Commissioner was appointed by the Trial Court for making inspection. After inspection, the Survey Commissioner submitted a report, to which objections were filed by the petitioners. The Trial Court, after rejecting the objections, confirmed the Survey Commissioner's report vide order dated 29.9.1999.

In order to rebut the averments of the report, the petitioners/defendants filed an application under Order XXVI,Rule 12 C.P.C. to appoint a Commissioner, which was rejected by the Trial Court vide order dated 30.08.2006, against which, a revision was preferred and that too was dismissed by the order dated 20.9.2006. Feeling aggrieved, petitioners have filed the instant writ petition inter alia on the grounds that while passing the impugned orders, the Courts below lost sight of the fact that a Commissioner Report was simply a piece of evidence and the aggrieved party, against whom, the report was going, had a legal right to adduce evidence in rebuttal to contradict the Commissioner's report.

Learned counsel for the petitioner submits that Order XXVI Rule 9 of the Civil Procedure Code provides for the appointment of Commissioner for local investigation; Rule 11 for examination of accounts; Rule 13 for making partition; and Sub-Rule 3 of Rule 14 provides for confirmation of report or for setting aside the report of a Commissioner but there is no such provision when the Court appoints Commissioner for making local investigation. Sub-rule 2 of Rule 10 of the Civil Procedure Code treats the report of a Commissioner only as a piece of evidence. The parties have a right to cross-examine the Commissioner in open Court touching any of the matters referred to or mentioned in the report. The parties may also adduce evidence either supporting the report of Commissioner or show that the report of the Commissioner is erroneous. In fact, the Court cannot take final view regarding the report of a Commissioner till the evidence is finally concluded and Court applies its mind on the report of the Commissioner. But in the instant case, the petitioners have not been provided ample opportunities by both the Courts below to adduce their evidence against the Commissioner's report.

To substantiate their arguments, learned Counsel for the petitioners has relied upon the judgment of this Court rendered in the case of Bulaki Lal and others Versus Mewa Lal and another [2006 (100) RD 484] and the Supreme Court's report in Amena Bibi and others versus Sk. Abdul Haque [AIR 1997 Calcutta 59].The contention raised by the learned counsel for the petitioners was that the report of the Commissioner is inadmissible in evidence and cannot be acted upon in view of Order 26.

Order 26, Rules 9, 10 and 18 of the Code of Civil Procedure which are relevant in the present controversy are being reproduced hereinafter:

"Order 26, Rule 9: Commissions to make local investigations:--

"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

Order 26, Rule 10: Procedure of Commissioner:--

"(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit:--

The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person: Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made its it shall think fit."

Order 26, Rule 18 deals with the appearance of the Counsel before the Commissioner and it reads as under:-

" Order 26 Rule 18 Parties to appear before Commissioner :--

"(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence."

In the case of Latchan v. Rama Krishna, AIR 1934 Mad 548, the Apex Court had to consider the validity of a commission report prepared in violation of Order 26, Rule 18, C.P.C. The facts were that an order for the issue of a commission was passed without notice to the defendant and no notice was also given to the defendant to be present at the time of inspection by the Commissioner of the property. Hon'ble Cornish, J. observed thus:

"It must be remembered that Rule 10(2), Order 26, Civil P.C., makes the report of the Commissioner evidence in the suit. Therefore it is of importance that the report should not be founded on representations made to the Commissioner, or on matters brought to his notice by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that think this alone would be sufficient to justify the interference of a Revision court. But there is Rule 18, Order 26 which says that when a commission is issued under this order the court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Sub-rule (2) of Rule 18 says that where all or any of the parties do not so appear, the Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation.

The legal validity of a Commissioner's report when there was no notice issued to the defendant before passing the order appointing the Commissioner or before the Commissioner visited the property for investigation was considered in V. P. Veerabhadran Pillai v. A. P. Bhagavathi Pillai, 1954 Ker I.T. 324 and it was observed:-

"It is improper to get commissioner reports behind the back of one of the parties to a litigation. A decision based on such a report is unsustainable "

The object of local investigation under Order 26, Rule 9, C.P.C. as stated in Amulya Kumar v. Annada Charan, AIR 1933 Cal 475 is not so much to collect evidence which can be taken in court but to obtain evidence with regards to its very peculiar nature can only be had at the spot. Order 26, Rule 9 C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed. There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission. In emergent cases it is necessary for the court to pass an order issuing commission without ordering notice. An order for the issue of a commission for local investigation without issue of notice under Order 26, Rule 9, cannot be characterised as without jurisdiction.

The only possible view which can be interfered is also clear from the wording of Order 20, Rule 18, C.P.C. which insists on notice to the parties to appear in person or by their agents or pleader in the property at the time of inspection. Notice to the parties is made compulsory only before the investigation is done by the Commissioner. It is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance.

Order 26, Rule 10 Sub-rule (2) states that the report and the evidence taken by the Commissioner shall be evidence in the suit. The principle behind Order 26, Rule 18 is obvious Order 26, Rule 10(1) authorises the Commissioner to take evidence regarding those matters which he is competent to investigate and reduce the same in writing and file the same along with his report. It is a principle of natural justice that it is only evidence taken in the presence of a party that could be used against him. It is for this reason that Order 26. Rule 18 contemplates an opportunity to be given to the parties to be present before, the Commissioner in the property at the time of investigation. Thus, the inevitable conclusion is that the court cannot take an absolute and final view till the evidence is finally concluded and the court applies its mind on the report of the Commissioner. To put it differently, the report of the Commissioner is only one of the pieces of evidence amongst other evidence to led by the parties for evidence.

It may be added that from the provisions and citations referred to above, it is manifest that the party objecting to Commissioner's report can lead best possible evidence at the time of hearing to countermand the report even if the same was accepted earlier.

The report of the Commissioner may be relied on after examining the Commissioner not as report forming the basis of an investigation contemplated by Order 26, Rule 9, but as corroborating the evidence of inspection conducted by the Commissioner The view by the lower court therefore that the report can be treated as evidence in the suit under Order 26, Rule 10, Sub-rule (2), C.P.C. is palpably incorrect.

For the reasons aforesaid, I set-aside the impugned orders and allow the petition. However, it is provided that it will be open for both the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioner's report and its conclusions.

As the Regular Suit No.225 of 1992 is pending since 1992, as such, the trial Court shall make earnest endeavour in deciding the suit, after affording opportunity of hearing to the parties and in accordance with law, expeditiously, say, within a period of two years from the date of receipt of a certified copy of this order.

Order Date :- 26.4.2011

Akhilesh