Ram Pal And Ors. vs Lila Ram & Sons
1997 Latest Caselaw 30 Del

JUDGMENT

S.N. Kapoor, J.

(1) $THIS revision is directed against an order dated 17th December, 1990. The operative portion of the impugned order reads as under : "The Local Commissioner shall do the following : 1. To demarcate the suit land measuring about 200 sq. yards shown as 'A', 'B', 'C', 'D' in the site plan in Triloki Colony Village Kotla Mubarak Pur, New Delhi which shall be identified by the parties as such; 2. To report as to whether the said suit land as mentioned above falls in Khasra No. 5 or in some other Khasra numbers.

(2) The respondent herein filed this suit for permanent injunction alleging that he was in possession of the suit land and sought injunction against the petitioners restraining them from illegally interfering in the peaceful possession of the respondent over land in dispute.

(3) According to the petitioner the property is situated in 'aabadi' having many rooms, latrine, bath-rooms etc. The petitioners are in possession since long before filing of this suit as well as earlier Suit No-413/1983. The respondent has no interest, right or title or interest in the property in question.

(4) The respondent filed a Suit No. 413/1983 for permanent injunction on 7.7.1983. Subsequently the Suit 70/1989 was filed in 1984-85 by the respondent for possession and recovery of damages.

(5) Having heard the learned Counsel for the petitioner it is apparent everything rests on the issue whether the property in question is a part of Khasra No. 5 or not. This question could not be decided without demarcation of the property in question. There may be or might be some justification in the submissions of the learned Counsel that the opposite party is abusing the process of this Court by delaying the matter. But that by itself may not be sufficient to accept the revision petition. The learned Counsel for the petitioner submitted that the Court could not delegate its authority by appointing a Tehsildar as a local Commissioner in view of the judgment in the case of Deepak Kapoor v. Ashok Kumar Ghosh & Others, Fao (OS) 63/1994 decided on 13th May, 1994. This judgment related to "Commissions to Examine Witnesses" and not to "Commissions for Local Investigation". The question which has been decided by the Division Bench in the said case related to the question of examining all the witnesses on commission and did not relate to the situation as is obtained in the present case where the witnesses are not being examined on Commissions. There cannot be any dispute with the proposition that Judicial functions of examining witnesses should not be ordinarily delegated generally to local Commissioner for the Judge or Magistrate concerned is required to draw inferences and intents of deposition of the witness. He does so by watching the way the questions are put to the witness, the ways he answers the questions and the demeanour of the witness. Besides, the questions of allowing or disallowing any question is, such a judicial functions which should not be ordinarily delegated. However, there may be exceptional circumstances to justify even examination of a witness(es) on Commission. These exceptional circumstances arise on account of necessity such as inability of the witness to appear in Court on account of statutory exemption from attending the Court under Sees. 133 and 132, Civil Procedure Code or on account of sickness or infirmity of the witness, under Rule I, or on account of exemption given to those who reside beyond local limits of its jurisdiction, or inability of any person to appear in Court on the appointed date, who is about to leave such limits, before the appointed date or inability of a person who cannot attend the Court on account of exigencies of public service without detriment of the public service under Rule 4, or who does not reside in India, under Rule 5 of Order 26. Such Commissions are preferably issued to some other Court to ensure greater sanctity to the depositions recorded before them. But even this is not an absolute proposition of law for Sub-rule (2) of Rule 4 of Order 26, Civil Procedure Code enables a Court to appoint any pleader or other person as Commissioner to examine any particular witness(es).

(6) Moreover, there are other types of commissions "Commissions" "for scientific investigation" (Rule 10 A), "for sale of immovable property" (Rule 10C), "to examine or adjust accounts" (Rule II), "to make partition of immovable properties" (Rule 13).

(7) Here in this case no judicial function has been delegated. It is a Commission for local investigation under Rule 9 of Order 26. Rule 9 of Order 26, Civil Procedure Code reads as under: "R.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 mense 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."

(8) The Commission ordered to be issued in this case may also be termed as commission for a ministerial act, under Rule 10-B. Rule 10-B reads as under : - "R. 10B. Commission for performance of a ministerial act.-(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice to do so, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and repot thereon to the Court. (2) The provisions of Rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9."

(9) In the present case local investigation is necessary to find out whether the property falls in Khasra No. 5 or not. This could not be done without reference to Aksh Sajra of the village, some prominent landmark(s) near or at the spot falling within Aksh Sajra and thereafter measuring the distances between the landmark(s) and plot in dispute marked 'A', 'B', 'C', 'D' and the Khasra No. 5 at the same time and then to super-impose plot marked 'A', 'B, 'C', 'D' on the Aksh Sajra. This investigation is essential for the purpose of elucidating the above said matter in dispute. As such the matter is covered by Rule 9. However, if it is taken to be a ministerial act then the matter would be covered by Rule 10B also. Without entering into further details, it is apparent that Tehsildar is the best suit,ed person to perform this function due to his expertise in such matters.

(10) The Commissioner is supposed to submit his report along with depositions recorded or other evidences collected at the spot for the purpose of elucidating the matter in dispute as to whether disputed land falls in Khasra No. 5 or not. Therefore, the judgment in the case of Deepak Kapoor (supra) does not appear to be of any help.

(11) In view of the distinction between the commissions to examine the witnesses and commissions for local investigation other different types of commissions engaged under Order 26, Civil Procedure Code The submission made by the learned Counsel for the petitioner appears to be misconceived and therefore, the contention of the petitioner has to be rejected.

(12) However, at the same time in order to avoid any delay it is desirable that the respondent shall take all possible steps to get the commission executed within two months from the date of knowledge of this order, including service of the Tehsildar, production of requisite record Aksh Sajra etc. In case of his failure to get the commission executed within two months then the order regarding the execution of commission shall become inoperative.

(13) With these observations the revision petition is disposed of. Learned Counsel for Petitioner shall also inform the Local Commissioner, the Counsel for respondent as well as the respondent about this order by sending a copy of this order by Registered Post to avoid delay.

(14) A copy of this order be sent to the learned Trial Court through learned District Judge along with Trial Court record without any delay.

(15) A copy of this order be given Dasti to learned Counsel for the Petitioner.