Dattatray Ramchandra Waikar vs Sou. Balutai @ Ranjana Suresh ...
2021 Latest Caselaw 4499 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO. 5010 OF 2019

Dattatray Ramchandra Waikar                                ....Petitioner
           v/s.
Balutai @ Ranjana Suresh Gavali and anr.                   .... Respondents

Ms. Shraddha Pawar i/b. Mr. Dilip Bodake for the Petitioner.
Mr. Vaibhav Gaikwad for Respondent No.1.

                                   CORAM: MADHAV JAMDAR, J.

DATED : 11th MARCH, 2021.

JUDGMENT :-

. In the present Writ Petition filed under Article 227 of the

Constitution of India, the Petitioner who is the original Defendant No.1,

has challenged the order dated 22/10/2018 passed by the learned Civil

Judge, Junior Division, Khandala below Exhibit - 36 in Regular Civil

Suit No.58 of 2013. Exhibit - 36 was filed by original Plaintiff i.e.,

present Respondent No.1 for appointment of Court Commissioner. It is

the contention in the Application at Exhibit - 36 that earlier a lady

advocate was appointed as Court Commissioner, however she has not

done work properly to some extent and therefore both the parties i.e.,

Plaintiff and Defendant No.1 have filed objections to the said report. It

is contended that it is necessary to appoint TILR as Court

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Commissioner. It is submitted that, if necessary, the earlier order of

appointing Court Commissioner be cancelled and new Court

Commissioner be appointed. The said Application is allowed by

impugned order dated 22/10/2018 and TILR has been appointed as a

Court Commissioner. The present Writ Petition challenging said order

was filed on 30/01/2019. However, during the pendency of the Writ

Petition, the Court Commissioner appointed pursuant to impugned

order dated 22/10/2018 carried out Commission work on 27/05/2019

and submitted his report. This Court thereafter by order dated

06/09/2019 requested the learned Trial Court to defer the hearing of

the Suit and thereafter by order dated 04/10/2019 directed the

learned Trial Court not to act upon the Court Commissioner's report

submitted pursuant to the impugned order.

2. Ms. Shraddha Pawar, learned counsel appearing for the Petitioner

submitted that the earlier Court Commissioner report was not rejected

by the learned lower Court by giving cogent reasons and the objections

in that behalf are not considered. According to her submission, unless

the earlier Commissioner's report is rejected by giving reasons, the

Court will have no power to appoint another Court Commissioner. She

has relied upon the judgment of the Madras High Court reported in R.

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Viswanathan v/s. P. Shanmugham and anr. 1985 1 MLJ 254                                  to

substantiate her case. She has also relied upon the judgement of this

Court in Sanjay Kisan Thorat and ors. v/s. Ramchandra Parsu Thorat

and anr. reported in 2018(3) ALL MR 487, to support her submission.

3. Mr. Vaibhav Gaikwad, learned counsel for Respondent No.1, on

the other hand, at the outset, submitted that he is not supporting the

contention in the Application at Exhibit - 36 which is filed by the

Respondent No.1 to the effect that lady advocate was appointed as

Court Commissioner and therefore, work was not done properly.

However, he states that the nature of dispute which is involved in the

present suit requires that the TILR be appointed as the Court

Commissioner. Learned counsel for the Respondent No.1 has also

relied upon the objections submitted by both the parties to the

Commissioner's report and submitted that as both the parties have

raised objections to the report submitted by the earlier Court

Commissioner, and therefore the said report is required to be rejected.

He pointed out that TILR was appointed as the Commissioner by the

impugned order and as the TILR has already submitted the report

(hereinafter referred to as the "Second Commissioner's Report), the

impugned order need not be interfered with, as it has been already

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implemented. He has relied upon the judgment of the Hon'ble

Supreme Court in the case between Ram Lal and ors. v/s. Salig Ram

and ors. reported in 2020(1) Mh.L.J.170 , particularly paragraph

nos.17 and 18 of the same. He has also relied upon the judgment of

this Court in the matter betweenVijay Shrawan Shende v/s. State of

Maharashtra reported in 2009(4) ALL MR 601 and submitted that in

the type of dispute which is involved in the suit, TILR should have been

appointed as Court Commissioner.

4. A perusal of the plaint filed in Regular Civil Suit No.58 of 2013

by the Respondent No.1 shows that allegations are regarding some

open space and construction made on the same, by the Defendant No.1

i.e. the present Petitioner. It appears that the Plaintiff i.e., the

Respondent No.1 has earlier filed Application bearing Exhibit - 30 for

appointment of the Court Commissioner and at the instance of the

Respondent No.1, Court Commissioner was appointed by order dated

13/06/2016. It appears that as per that order, an advocate was

appointed as Court Commissioner. It is significant to note that the

Respondent No.1 has not taken any objection for appointment of an

advocate as Court Commissioner and in fact the said appointment was

at the instance of the Respondent No.1.

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5. The said learned advocate appointed as Commissioner had

conducted the Commissioner's work on 06/05/2016 from 11:00 a.m.

to 12:30 p.m. and submitted a very detailed report on 20/06/2016

along with the map giving measurements. (Hereinafter referred to as

the "First Commissioner's Report"). It further appears that certain

objections were taken to the said report by the Respondent No.1 on

22/08/2016 and by the Petitioner on 08/08/2016. It is further to be

noted that the Respondent No.1 filed Application dated 30/01/2017

bearing Exhibit - 36 seeking appointment of fresh Commissioner. As

mentioned herein above, in the Application it is mentioned that the

earlier Court Commissioner was a lady advocate and who has not done

the work properly and TILR be appointed as Court Commissioner. The

said Application was objected by the Petitioner by filing his objection

dated 10/07/2017 inter alia on the ground that Court Commissioner

earlier appointed had already performed the work.

6. A perusal of the impugned order shows that the learned Trial

Court without considering the detailed First Commissioner's Report

filed by the learned Court Commissioner has passed the impugned

order by which the TILR was appointed as the Court Commissioner. It

is mentioned in the impugned order that the measurements are not

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properly taken by the learned First Court Commissioner and the said

report is objected by both the parties. A perusal of the First

Commissioner's Report dated 20/06/2016 and the map annexed to the

same clearly shows that the learned Court Commissioner has taken

measurements and they are specifically mentioned in the report of the

First Court Commissioner as well as they are specifically mentioned on

the map annexed to the said report. Thus the observation in the

impugned order that the measurements are not properly taken, is

perverse. The learned Trial Court has not at all given reasons for such

observation and completely ignored the contents of the First

Commissioner's Report and the map annexed to the same.

7. The reason mentioned in the Application at Exhibit - 36 that lady

advocate was appointed as Court Commissioner and she has not done

work properly, is not only contrary to the contents of the First

Commissioner's Report but it is required to be noted that such gender

bias has no place in the administration of justice. It is to be noted that

the learned Advocate of the Respondent No.1 has not supported the

said contention raised by the Respondent No.1 in the Application at

Exhibit - 36.

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8. The impugned order clearly shows that the learned Trial Court

has not taken into consideration the detailed First Commissioner's

Report dated 20/06/2016 filed by the learned Commissioner and has

also not discussed whether there is any substance in the objections

raised by the Respondent No.1 and the Petitioner to the said First

Commissioner's Report. Thus, the impugned order passed is totally

perverse.

9. Section 75 of the Code of Civil Procedure, 1908 (hereinafter

referred to as 'C.P.C.') is regarding power of Court to issue

Commissions. The same is reproduced hereinbelow for ready

reference :-

" 75. Power of Court to issue commissions. - Subject to such conditions and limitations as may be prescribed, the Court may issue a commission -

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy

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and natural decay and which is in the custody of the Court pending the determination of the suit ;

(g) to perform any ministerial act.] "

In this case, clause (b) regarding local investigation is relevant.

10. Order XXVI of C.P.C. makes elaborate provisions regarding

commissions. Orders XXVI, Rule 9 and 10 are regarding commissions

for local investigations and the same are relevant for this case and are

reproduced hereinbelow for ready reference :-

" 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.

10. Procedure of Commissioner - (1) The Commissioner, after

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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 as

it shall think fit. "

11. Thus the Order XXVI Rule 10(3) very clearly provides that the Court

may direct such further inquiry to be made as it shall think fit, which may

include appointment of the new Commissioner, but for that purpose the

Court should be dissatisfied with the proceedings of the earlier

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Commissioner. Thus before appointing Second Commissioner, it is necessary

that the Court should be dissatisfied with the report of the earlier

Commissioner or proceedings of the earlier Commissioner. It is also very

important to note that parties to suit are entitled to examine / cross-examine

the Commissioner regarding several aspects of the Commission work and his

report as set out in Order XXVI Rule 10(2). As held in the case reported in

2011 (3) Bom.C.R. 807 in the matter between Kolhapuri Bandu Lakade

v/s. Yallappa Chinappa, it is settled legal position that merely because a

Court Commissioner is appointed, it will not prejudice the interest of either

of the parties. If any of the parties is aggrieved by the report of the Court

Commissioner, an opportunity would be available to that party to cross-

examine the Court Commissioner and to point out as to how his conclusions

were not correct. It is further held that the party who was not aggrieved

would also prove how his conclusions are correct.

12. Ms. Shraddha Pawar, learned counsel for the Petitioner is right in

relying upon the judgment in the case of R. Viswanathan (supra) of

Madras High Court wherein it is held that it is well settled proposition

that until the Court is dissatisfied with the proceedings and report of

the Commissioner earlier appointed, it will not be proper to ignore the

same and direct even further inquiry, much less the scrapping of the

earlier report as a whole and appoint a fresh Commissioner. It is further

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held that the power in this behalf is circumscribed by the principles

under Order 26, Rule 10(3) of the C.P.C. The power has to be exercised

only after the Court below renders a finding that the proceedings and

the report of the earlier Commissioner are not satisfactory and there is

need for further inquiry, then only another Commissioner can be

appointed.

13. The impugned order clearly shows that the learned Trial Court

has completely ignored the contents of the First Commissioner's Report

and contents of the map annexed to the same and without considering

the same and without going into the objections raised by both the

sides, perversely passed the impugned order.

14. Mr. Vaibhav Gaikwad, learned counsel for Respondent No.1 has

relied upon the judgment of the Hon'ble Supreme Court in Ram Lal

and ors. (supra). In this case, the factual position shows that the High

Court in the Second Appeal rejected the Court Commissioner's report

on the ground that Commissioner had not carried out demarcation in

accordance with the applicable instructions and on the basis of the

rejection of the Court Commissioner's report, dismissed the suit. The

Hon'ble Supreme Court relied on clause (3) of Rule 10 of Order XXVI of

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C.P.C. which reads as under :-

" Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. "

15. In view of said provision, the Hon'ble Supreme Court has held

that if the local Commissioner's report was found wanting in

compliance of applicable instructions for the purpose of demarcation, it

was only a matter of irregularity and could have only resulted in

discarding of such a report and requiring a fresh report but any such

flaw, by itself, could have neither resulted in nullifying the order

requiring appointment of local Commissioner and for recording a

finding after taking his report nor in dismissal of the suit. In fact, this

judgment supports the case of the Petitioner that unless the report of

the Court Commissioner which has been submitted, is discarded, new

Commissioner need not be appointed.

16. Mr. Vaibhav Gaikwad, learned counsel for Respondent No.1 has

also relied upon another judgment which is of this Court in Vijay

Shrawan Shende (supra). In fact, in this judgment also, it is held that

it would not be proper to dismiss the suit simply because the Court

Commissioner has not adopted a correct procedure of measurement

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and the exercise of re-measurement, according to rules, will have to be

got done through Court Commissioner again and again, if necessary,

because failures of Cadesteral Surveyors are not attributable to parties

to the suit. Thus the sum and substance and the ratio of the said

judgment is the same as that of the judgment of the Hon'ble Supreme

Court in Ram Lal and ors. (supra), wherein it is held that if the report

of the Court Commissioner is not proper, that should not result in

dismissal of the suit as failures of Court Commissioners are not

attributable to parties to the suit.

17. In any case, in the present case, by the impugned order, the new

Commissioner has been appointed without properly considering the

contents of the First Commissioner's Report. The impugned order is

passed only on the basis that both the parties have filed objections to

to the First Commissioner's Report. The learned Trial Court should have

taken into consideration the detailed First Commissioner's Report as

well as whether there is any substance in the objections raised by both

the parties and unless a finding, after perusal of the material, recorded

that the First Commissioner's Report is required to be discarded then

only the fresh Court Commissioner could have been appointed.

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18. The objections raised by the Respondent No.1 to the First

Commissioner's Report are to the effect that the Court Commissioner

has not recorded the measurements, not shown the position of

windows, not shown the place of access, not shown the position of

tanks etc. All these aspects are specifically shown in the First

Commissioner's Report (Exhibit - 32) and the map annexed to the

same. The learned Trial Court has completely ignored the contents of

the First Commissioner's Report. It is also required to be noted that in

any case, the Respondent No.1 will have the opportunity to cross-

examine the First Court Commissioner. However, without recording a

finding by giving cogent reasons that the report of the First Court

Commissioner is required to be discarded, no new Commissioner could

have been appointed by the learned Trial Court.

19. The objections raised by the Petitioner to the First Commissioner's

Report are also concerning not mentioning measurement of the

distance between two walls on southern side, not mentioning the suit

property properly, not mentioning the distance of access etc. Perusal of

the First Commissioner's Report clearly shows that all these aspects are

set out in detail in the First Commissioner's Report and in any case

even the Petitioner will have opportunity to put questions to the Court

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Commissioner.

20. In view of the above, following order is passed :-

(i) The impugned order dated 22/10/2018 passed below

Exhibit - 36 in Regular Civil Suit No.58 of 2013 by the learned

Civil Judge, Junior Division, Khandala is quashed and set-aside.

(ii) This Court by ad-interim order dated 04/10/2019 directed

the learned Trial Court not to act upon the Second Court

Commissioner's report which was submitted pursuant to the

impugned order dated 22/10/2018. As the said impugned order

dated 22/10/2018 is quashed and set-aside, the said ad-interim

order dated 04/10/2019 is confirmed and the learned Trial Court

is directed not to act upon the said Second Court Commissioner's

Report. However, it is clarified that the Respondent No.1 who is

relying on the said report of the TILR, can examine the said TILR

as his witness and can rely on the said report of TILR.

(iii) It is expressly clarified that all the observations regarding

First Commissioner's Report made in this order are only prima

facie observations and all contentions in that behalf are expressly

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kept open.

21. The Writ Petition is allowed in the aforesaid terms.

(MADHAV JAMDAR, J.)