Page No.# 1/9 vs Krishna Murari Singh
2025 Latest Caselaw 3432 Gua

Gauhati High Court

Page No.# 1/9 vs Krishna Murari Singh on 24 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/9

GAHC010270342022




                                                            2025:GAU-AS:1938

                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : CRP(IO)/35/2023

          AJIT SINGH AND 2 ORS.
          S/O- LATE JYOTIISH PRASAD SINGH R/O- VILL- NACHAOR (BUROIGHAT),
          P.O- BEDETI, MOUZA- BEHALI, DIST- SONITPUR, ASSAM, PIN- 784179

          2: RAMESH SINGH
           S/O- LATE JYOTIISH PRASAD SINGH
           R/O- VILL- NACHAOR (BUROIGHAT)
           P.O- BEDETI
           MOUZA- BEHALI
           DIST- SONITPUR
          ASSAM
           PIN- 784179

          3: SUSHILA DEVI SINGH
          W/O- LATE JYOTISH PRASAD SINGH
           R/O- VILL- NACHAOR (BUROIGHAT)
           P.O- BEDETI
           MOUZA- BEHALI
           DIST- SONITPUR
          ASSAM
           PIN- 78417

          VERSUS

          KRISHNA MURARI SINGH
          S/O- LATE SURJYA NARAYAN SINGH, R/O- VILL- NACHAOR (BUROIGHAT),
          P.O- BEDETI, MOUZA- BEHALI, DIST- SONITPUR, ASSAM, PIN- 784179




AFor the petitioner(s)     : Mr. S. Biswas, Advocate

For the respondent (s) : Mr. S. Sahu, Advocate
                                                             Page No.# 2/9

                            BEFORE
             HON'BLE MR. JUSTICE DEVASHIS BARUAH
                           ORDER

24.02.2025

Heard Mr. S. Biswas, the learned counsel appearing on behalf of the petitioners and Mr. S. Sahu, the learned counsel appears on behalf of the respondent.

2. The present application under Article 227 of the Constitution is directed against the order dated 07.08.2018 passed by the learned Court of the Civil Judge, Sonitpur, Tezpur in Title Suit No.34/2015 (Old), Title Suit No.8/2015 (New) whereby the Commissioner's report dated 05.06.2017 which was submitted was rejected.

3. Mr. S. Biswas, the learned counsel appearing on behalf of the petitioners submitted that the report so submitted in terms with Order XXVI Rule 10(1) of the Code of Civil Procedure, 1908 (for short, 'the Code') would be a piece of evidence which is required to be kept on record and the learned Trial Court did not have the jurisdiction to reject the said report. It is a different thing that at the time when the evidence is appreciated, the learned Trial Court may not give such importance to the report, but the report on its own cannot be rejected. The learned Page No.# 3/9

counsel for the petitioners further submitted that if the learned Trial Court was not satisfied with the report, the learned Trial Court had the power under Order XXVI Rule 10(3) of the Code to direct for a fresh report. In that regard, the learned counsel for the petitioners has referred to the judgment of the Coordinate Bench of this Court in the case of Silchar Municipal Board vs. Eastern Tea Estates Private Limited, reported in (1993) 2 GLR

445.

4. Per Contra, Mr. S. Sahu, the learned counsel appearing on behalf of the respondent submitted that the report on its own cannot be used as evidence taking into account that the report is a faulty report. The learned counsel for the respondent submitted that the learned Trial Court ought to have directed a fresh Commission which the learned Trial Court failed to do in the order dated 07.08.2018.

5. I have heard the learned counsels appearing on behalf of the parties and also taken note of the provisions of Order XXVI Rule 9 and Rule 10 of the Code. This Court has further gone into the contents of the judgment of the Coordinate Bench of this Court in the case of Silchar Municipal Board (supra) wherein the Coordinate Bench of this Court had specifically dealt with as to how a report submitted in terms with Order XXVI Rule 10 of the Code is to be appreciated. Paragraph Nos.5 to 8 of the said Page No.# 4/9

judgment in the case of Silchar Municipal Board (supra) is reproduced herein under:-

"5. Rule 9 Order 26, CPC empowers the court to appoint a Commission to make local investigation where it deems such 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 procedure to be adopted by the Commissioner in this behalf is governed by Rule 10. The Commissioner is obliged to hold 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. The report of the Commissioner and 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 may examine the Commissioner 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. Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit.

6. The object of the local investigation is not so much to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can only be had on the spot. The Court his a discretion to issue Commission for local investigation or not; it is not bound to order it in all cases. It is the duty of the Page No.# 5/9

Commissioner to make local inspection after due notice to the parties and observe various matters directed to be reported upon by the court and make a faithful report. The report shall form part of the records.

This only means that it shall form part of the record in the same way as pleadings, affidavits etc. form part of the record. In other words, it is to be treated as evidence even without the examination of the Commissioner though either party or both parties are entitled to examine the Commissioner. Parties are entitled to prefer objections to the report and where such objections are raised the court is bound to hear the objections. If the court is dissatisfied with the proceeding of the Commissioner, further enquiry as thought fit can be ordered. For the purpose of satisfying the court that further enquiry should be ordered parties are entitled to adduce evidence and seek to examine or cross-examine the Commissioner.

7. More than 50 years ago the Judicial Committee of the Privy Council held in AIR 1940 3 (Privy Council) that:

Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.

Page No.# 6/9

This of course does not mean that the report irrespective of its merits or qualify is to be accepted by the Court. In fact, in the reported case the court did not chose to act upon the report. It is for the court in every case to examine the report carefully, the objections preferred by the parties and the evidence on record before coming to a conclusion that the report is of such quality as could be acted upon.

8. The question which however arises for consideration is whether at the preliminary stage the court has to apply its mind on the acceptance of the report and to pass an order. Commissioner''s report of course does not conclude the matter in issue. It is only one piece of evidence which ultimately has to be considered along with other evidence in the case before the Court can come to a conclusion over the disputed issue. It is for the court ultimately to rely or refrain from relying upon Commissioner''s report for the purpose of granting a decree to the Plaintiff or to dismiss the suit.

But the law does not oblige the court to pass a formal order accepting report at a preliminary or intermediatory stage, as done in the case. Such an order of acceptance passed in the light of failure of the parties to file objections or on consideration of objections'' filed by the parties is not contemplated in the scheme of Rule 10 Order 26, Code of Civil Procedure. It is open to a party to point out defects irregularities and shortcomings in the work done by the Commissioner, the procedure adopted by the Commissioner, the observation''s made by him and the inferences, if any, drawn by him and request the court to direct the Commissioner to make a further Page No.# 7/9

enquiry. If the mistakes and errors in the report are mistakes or errors so fundamental as to take away the value of the report, if the report is vitiated by bias, it may be open to the parties to request the court to appoint a fresh Commission. In one case the court decides that further enquiry is called for and in the other case the court decides that a fresh Commission is to be appointed, but in no case is the court called upon to pass a formal order "accepting the report" or directing the "report to be part of the record". Every report is part of the record by virtue of the mandate of Rule 10. A report does not become a part of the record by order of the court it becomes part of the record by virtue of the provisions of Rule 10. Even where the court is not satisfied that a further report is called for or that a fresh Commission should be appointed, it is still open to the court not to rely on the report at the conclusion of the trial having reference to the totality of the evidence adduced before it in the trial. It is wholly inappropriate for the court at the preliminary stage to reject objections as without merit. This is because the court may be persuaded to take a different view after evidence is adduced at the trial of the suit. The court is not precluded from considering the report and the objections in the light of evidence adduced at the trial. At the preliminary stage what the court is called upon to consider is whether a fresh enquiry is called for and not to consider whether the objections are to be accepted or rejected or whether report is to be accepted or rejected. Before deciding whether further enquiry is to be ordered, court should give an opportunity to the parties to examine the Commissioner."

Page No.# 8/9

6. From a perusal of the above quoted judgment in the case of Silchar Municipal Board (supra), it is clear that the learned Trial Court could not have rejected the report as done in the instant case. The learned Trial Court ought to have kept the said report in the records as statutorily by virtue of Order XXVI Rule 10(1) of the Code, the said report becomes a part of the record.

7. This Court is also of the opinion that when the learned Trial Court had directed that there is a requirement of exercise of jurisdiction under Order XXVI Rule 9 of the Code seeking a report by appointing a Commissioner, the learned Trial Court ought not to have reviewed the said order thereby proceeding with the suit in absence of any further report.

8. Taking into account the above, this Court interferes with the impugned order dated 07.08.2018 passed by the learned Court of the Civil Judge, Sonitpur, Tezpur in Title Suit No.34/2015 (Old), Title Suit No.8/2015 (New) and further observes that the Survey Commissioner's report dated 05.06.2017 would be a part of the record of Title Suit No.34/2015 and the appreciation of the said report has been done within the contours of the observations made by the learned Coordinate Bench of this Court in the case of Silchar Municipal Board (supra), more particularly paragraph No.8.

Page No.# 9/9

9. This Court further grants liberty to both the parties to file application, if so advised, to seek a further survey report, and if such application is being filed, the learned Trial Court taking into account that it had already exercised its jurisdiction to call for a Commissioner's report in terms with Order XXVI Rule 9 of the Code shall duly pass appropriate orders.

10. With the above observations and directions, the instant petition stands disposed of.

11. It is also seen that vide the order dated 03.02.2023, the further proceedings of Title Suit No.8/2015 pending before the Court of the Munsiff, Biswanath Charialai was stayed. The said stay order is vacated and the parties herein are directed to appear before the learned Trial Court on 17.03.2025 for the further proceedings in the said suit.

JUDGE

Comparing Assistant