Ganesh Kumar Saraf vs Shailendra Singh Tomar
2023 Latest Caselaw 3597 MP

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 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
        HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                      ON THE 1 st OF MARCH, 2023
                   MISC. PETITION No. 4855 of 2022

BETWEEN:-
GANESH KUMAR SARAF S/O SHRI POORAN MAL
SARAF, AGED ABOUT 63 YEARS, SARAWAGI MOHALLA
WARD NO 3 NAGAR SHEOPUR (MADHYA PRADESH)

                                                              .....PETITIONER
(BY SHRI MAHESH GOYAL - ADVOCATE )

AND
1.    SHAILENDRA SINGH TOMAR S/O SHRI RAMDAS
      SINGH TOMAR F C I GODAM KE PICHE SHEOPUR
      (MADHYA PRADESH)

2.    STATE OF M.P. THR.         COLLECTOR SHEOPUR
      (MADHYA PRADESH)

                                                           .....RESPONDENTS
(BY SHRI S.N. SETH - ADVOCATE )

      T h is petition coming on under the category of 'held up' this day,
JUSTICE MILIND RAMESH PHADKE passed the following:
                                   ORDER

The present petition under Article 227 of the Constitution of India has been preferred against the order dated 13.09.2022 passed in RCSA 25/2017 by First Civil Judge Class II to the Court of First Additional Judge, Sheopur whereby the objection filed by the petitioner with regard to the Commissioner's

report were rejected without following relevant procedure for deciding the objection.

Brief facts which are necessary for disposal of the present petition are that in the year 2017 the petitioner has filed Civil Suit for declaration, possession and for recovery of mesne profits before learned Civil Judge Class II which was registered as RCSA No. 25 /2017. In the plaint it has been averred by the plaintiff that the land bearing Survey No. 286/02 Area 1 Beegha, 8 Biswa and land bearing Survey No. 291/01, ad-measuring 15 Biswa, total land 2 Beegha, 3 Biswa (0.449 hectare) has been purchased by him by way of a registered sale deed dated 09.11.1979 from one Krishna S/o Dayaram Mali.

Thereafter, the land was got diverted vide order dated 12.08.1998 passed by the Court of Sub-Divisioanl Officer Sheopur. In the year 2015 a portion of land ad- measuring 26zx447 was encroached upon by the defendant. Therefore petitioner/plaintiff being constrained had filed the present suit.

Defendant no. 1 filed his written statement and denied the allegations made in the plaint. During course of the proceedings an application under Order 26 Rule 9 CPC was moved by the respondents/defendant for issuance of commission and consent was given by the petitioner/plaintiff for the appointment of Commissioner. On 27.03.2022 SDO was appointed as Court Commissioner, who after inspection had submitted his report. Against the said report, the present petitioner/plaintiff submitted his objections but the same were rejected by the impugned order, hence this petition.

Learned Counsel for the petitioner vehemently argued that the order impugned passed by the learned Trial Court is not in consonance with the Order 26 Rule 10 CPC wherein it is specifically mentioned that it is only after

the examination done by the parties that the Commissioner's report can be accepted but without considering this aspect the impugned order has been passed and the objections which were submitted by the petitioner were not even touched and considered and therefore impugned order deserves to be set aside. To bolster his submission, he has placed reliance on the case of Harbhajan Singh v. Shakuntala Devi Sharma reported in AIR 1976 175 for the contention that objections against the Commissioner report is first to be decided and the authority is bound to consider and decide the objection before relying upon the report or statement recorded by the Commissioner and since the learned Trial Court has referred the objections but had not dealt with them therefore the impugned order suffers from perversity and illegality and deserves to be set aside Per contra, learned Counsel for Respondent no. 1 submitted that the impugned order does not suffer from any perversity as the objections which have been raised by the petitioner have been considered and even otherwise there is an opportunity to the petitioner/plaintiff to cross examine the commissioner as provided under Order 26 Rule 10 (3) at the time when the Commissioner would be called for examination and bring this aspect to the knowledge of the Trial Court that the proceedings of the Commissioner were not correct and may compel the Trial Court to make further enquiry as would

be necessary and since that stage has not yet reached, therefore, the contention of the petitioners cannot be acceded to and the impugned order needs no interference. To bolster his submissions he has placed reliance in the case of Jai Singh and Ors. v. Municipal Corporation of Delhi and Ors. reported in 2010 (9) SCC 385 for the proposition that the High Court is expected to exercise wide powers under Article 226/227 of the Constitution of India with

great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognized constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or a justice.

Heard the Counsel for the parties and perused the record. Admittedly, the learned Trial Court has appointed a Commissioner under Order 26 Rule 9 CPC. Report has been submitted and along with a report, map, Field Book, Nazri Naksha and the copies of Khasra entries were submitted. The objections which were raised by the petitioner were with regard to the procedure which has been adopted by Naib Tahsildar who was appointed as Commissioner in submitting his report. Order 26 Rule 10 reads as under:-

"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 as it shall think fit".

The said provisions, lay down that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record and 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 and for that Commissioner may be called by the Court and if the Court is dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

It is very much clear that the plea raised in the objections preferred by the petitioner could be asked to the Commissioner at the time he is brought in the witness box and could be cross examined by either of the parties. That apart from the bare reading of the impugned order, it appears that the Court has applied its mind and only after due deliberation on to the objections has passed the impugned order. The judgment cited by the petitioner in the matter of Harbhajan Singh (supra) has no applicability in the matter as it is based on different facts. Thus, this Court does not find any illegality or perversity in the impugned order. Therefore, the petition sans merits and is hereby dismissed.

The parties are at liberty to cross-examine the Commissioner on its report and the petitioner is free to raise all questions to him which he had objected to.

(MILIND RAMESH PHADKE) JUDGE ar

ABDUR RAHMAN 2023.03.02 11:28:45 +05'30'