Madhya Pradesh High Court
Sardar Singh Chouhan vs Sanjay Amliyar on 7 August, 2024
Author: Hirdesh
Bench: Hirdesh
1 MP-3380-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF AUGUST, 2024
MISC. PETITION No. 3380 of 2024
SARDAR SINGH CHOUHAN
Versus
SANJAY AMLIYAR AND OTHERS
Appearance:
Shri Shailendra Shrivastava, learned counsel for the Petitioner .
Shri Mayank Mishra, learned PL for the respondent/State.
ORDER
This petition under Article 227 of the Constitution of India is filed by
the petitioner against the order dated 08.05.2024 passed by Ist Civil Judge,
Senior Division, Jhabua in Civil Suit No.111/2021 whereby the trial court
has dismissed the application under section 151 CPC filed by the
petitioner/plaintiff regarding objection on commissioner report and to call
fresh commissioner report as per the direction given by the first appellate
court by order dated 13.05.2022 in MCA No.02/2022.
2. After perusal of the impugned order it is found that trial court
issued the writ of commission in which objection was raised by both the
parties to again issue a writ of commission for calling fresh commissioner
report which was rejected by the trial court. In the case of M.P Rajya Tilhan
Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and others vs.
M/s Modi Transport Service reported in 2022 Live Law (SC) 471, it has
2 MP-3380-2024
been held as under:
"33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a
commissioner to make local investigations which may be requisite or proper for
elucidating any matter in dispute, ascertaining the market value of any property,
account of mesne profit or damages or annual net profits. Under Order XXVI Rule
11, the court has the power to issue a commission in a suit, in which examination of
adjustment of accounts is necessary, to a person as it thinks fit directing him to make
such examination or adjustment. When a court issues such a commission to such a
person, it can direct the commissioner to make such an investigation, examination
and adjustment and submit a report thereon to the court. The commissioner so
appointed does not strictly perform a 'judicial act which is binding' but only a
'ministerial act'. Nothing is left to the commissioner's discretion, and there is no
occasion to use his judgment or permitting the commissioner to adjudicate and
decide the issue involved; the commissioner's report is only an opinion or noting, as
the case may be with the details and/or statement to the court the actual state of
affairs. Such a report does not automatically form part of the court's opinion, as the
court has the power to confirm, vary or set aside the report or in a given case issue a
new commission. Hence, there is neither abdication nor delegation of the powers of
functions of the court to decide the issue. Sometimes, on examination of the
commissioner, the report forms part of the record and evidence. The parties can
contest an expert opinion rely upon such an expert opinion/commissioner's report.
Even if the court relies upon the same, it will merely aid and not bind the court. In
strict sense, the commissioners' reports are 'non-adjudicatory in nature', and the
courts adjudicate upon the rights of the parties."
3. Accordingly, without summoning commissioner, trial court did
not commit any jurisdictional error in rejecting the application filed by the
petitioner. In have perused the impugned order. After perusal of the
impugned order, I do not find any illegality in the impugned order so as to
warrant interference by this Court under Article 227 of the Constitution of
India. However, the petitioner/plaintiff may apply before the trial court to
call the commissioner and cross examine him and thereafter trial court has to
confirm, vary or set aside the report or issue a new commission in the light
of the M.P Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama
3 MP-3380-2024
(supra).
4. With the aforesaid the petition stands disposed of.
(HIRDESH)
JUDGE
hk/
