Mahrajo Kuar v. Sudamia Devi — 1991 DIGILAW 329 (PAT)

Judgment S. B. Saayal, J. 1. This civil revision arises out of a partition suit. The impugned order dated 23-1-1986 recalls the order dated 13-11-1984 confirming the Advocate Commissioners report for preparation of final decree, The court below has recalled the order on the ground of violation of Order XXVI rule 18 of the Code of Civil Procedure relying upon a single Bench decision of this Court in Smt. Mandera Mukherjee V/s. Sachindra Mukherjee, AIR 962 patna 211. Doubting the correctness of the said decision B. K. Roy, J. has referred the matter to a Division Bench by his order dated 18-1-1989. 2. The brief facts are as follows : The plaintiff instituted a suit for partition on 22-2-1967 and obtained a preliminary decree on 20-6-1979 defendant No.11 filed a petition for appointment of an Advocate Commissioner for making partition of the properties and on 16-9-1981 an Advocate commissioner was appointed without any direction by the C ourt to the parties to appear before the Advocate Commissioner as required under order XXVI, Rule 18 of the Code of Civil Procedure. The Advocate Commissioner received the writ on 1-10-1981 and directed the plaintiff to file certified copy of preliminary decree fixing 3-10-1981 for issue of notices to the parties. On 3-10-1981 notice was issued to all the parties through registered post fixing 12-11-1981 for hearing and for local inspection. On a perusal of the order sheet of the Advocate Commissioner dated 14-1-1982, 2l-i-l982 and 14-2-1982 (Annexure-2) it appears that defendant Nos.4, 5.6, 8, 9 and 10 appeared before the Advocate Commissioner pursuant to the notice issued by him. The impugned order has been passed at the iastance of defendant Nos.4, 5, 6, 8 and 10, all of whom appeared before he Advocate commissioner. The Advocate Commissioners report came for consideration by the court on 27-7-1984. The court fixed 7-8-1984, 9-8-1984 and 31-9-1984 for filing objection, but no objection was filed and on 13-11-1984 the Advocate commissioners report was confirmed without objection to the report. The Advocate Commissioners report came for consideration by the court on 27-7-1984. The court fixed 7-8-1984, 9-8-1984 and 31-9-1984 for filing objection, but no objection was filed and on 13-11-1984 the Advocate commissioners report was confirmed without objection to the report. On 124-1985 a petition was filed under Sec.151 of the Code of Civil procedure by defendant Nos.4, 5, 6, 8 and 10 who are opposite party Nos, 1 to 6, for recalling the order dated 13-11-19884 on the grounds (a) the copy of the petition for preparation of final decree and appointment of Advocate commissioner was not served on the parties to the suit; (b) the court appoint ed the Advocate Commissioner without any notice to the parties; (c) the court did not pass any order directing the parties to appear before the Advocate commissioner as required under Order XXVI. Rule 18 ; (d) the defendands had no notice of the filing of the report of the Advocate Commissioner before the court nor any notice for filing objection to the Advocate Commissioners report was given ; (e) the order was confirmed by the court only in pretence of mother and son, who were plaintiff and defendant No.11 to the exclusion of parties who belong to two other branches, namely, Mitulal singh and Jitulal Singh. 3. On a perusal of the order sheet of the court below as also the order sheet of the Advocate Commissioner it transpires that: (a) copy of the application for preparation of final decree by defendant No.11 was not served on other parties and/or their counsel; (b) the parties were not noticed for appointment of Advocate Commissioner nor any order was passed directing the parties by issuance of notice to appear before the Advocate Commissioner. The Advocate Commissioner, however, issued notice to all the parties by registered post and the defendants at whose instance the impuged order has been passed appeared before the Advocate Commissioner on different dates. The order sheet does not show that after filing of the report of the advocate Commissioner either counsel of the parties or the parties were noticed for filing objection to the Advocate Commissioners report. On various dates the case was adjourned. The plaintiff and defendant No.11 who belong to the branch of Damri Singh only appeared for confirmation of the two Advocate Commissioners report. 4. On various dates the case was adjourned. The plaintiff and defendant No.11 who belong to the branch of Damri Singh only appeared for confirmation of the two Advocate Commissioners report. 4. The court below held that there has been in infraction of Order xxv 1, Rule 18 of the Code of Civil Procedure inasmuch as no direction to the parties was given by the court for their appearance before the Advocate commissioner The compliance of this provision is a must, at laid down in the case of Smt Mandera Mukherjee (tupra ). it also held that the other parties are also entitled to a copy of the application filed for preparation of final decree, as held in the case of Abdul Hai V/s. Rahatullah Mian and another, 1974 BBCJ 351 . It, However, committed an error of record in observing in the impugned order that none of the defendants appeared before the Advocate commissioner, which is not factually correct,, The court below, therefore, recalled the order of confirmation and gave opportunity to ail the parties to file their objection to the report of the Advocate Commissioner. 5. The basic questions decided in the case of Smt. Mandera Mukherjee (supra) are (a) the order of the court appointing a pleader Commissioner without notice to the defendants is without jurisdiction ; (b) direction to the parties by the court to appear before the Commissioner is mandatory and any notice issued by the pleader, Commissioner to the parties would not validate the appointment of the Commissioner or cure the absence of direction by the court for appearance before the pleader Commissioner. While so deciding the learned Judge has relied upon the case of Latchan Natdu V/s. Ram Krishna ranga Rao, AIR 1934 Mad 548 , where it has been observed : "rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. Therefore, there is no power in the Court to issue an ex parte Commission. . . . . . Even an emergency cannot absolve the Court from complying with Rule 18. " 6. Latchan Naidus case (supra) is clearly distinguishable. In that case parties has no notice of the issue of Commission at any stage about the proceeding for preparation of final decree ( Sic ) nor parties had opportunity to appear before the commission. . . . . Even an emergency cannot absolve the Court from complying with Rule 18. " 6. Latchan Naidus case (supra) is clearly distinguishable. In that case parties has no notice of the issue of Commission at any stage about the proceeding for preparation of final decree ( Sic ) nor parties had opportunity to appear before the commission. The whole proceeding was taken behind the back and, therefore, the court observed : ". . . . . . it is so manifestly improper that one party to a luit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that I think this alone would be sufficient to justify the interference of a revision Court. " In this background the court observed that the provision of Rule 18 is mandatory and is intended to ensure that the parties had notice of the appointment of Commissioner and that they must attend his investigation. 7 The correctness of the decision of Latchan Naidus case (supra)whether a court can appoint a Commissioner without notice to the other side came for consideration on a reference to a Division Bench in the case of chalapati Veerama and others V/s. Chalapati Venkatachalam, AIR 1959 Andhra pradesh 170. It was held in that case Order XXVI, Rule 9 which empowers appointment of Commissioner does not envisage that before such an appointment a notice to the parties is at all required. Same is the position even when the said provision is read in conjunction with Order XXVI, Rule 18, c. P. C. The Division Bench held that it is open to the Court to issue an ex parte commission if it deems that a local investigation is requisite for the purpose of the suit. In rendering the said decision it relied upon a later decision of Madras High Court in Moosa Kutty, AIR 1953 Madras 717 and disagreed with the views expressed in the case of Latchan Naidu (supra ). In mussa Kuttys case (supra), which is a later decision of Madras High Court, the court observed that appointment of commissonor until the appearance of the defendants may be defeating the object of appointment of commissioner and "incriminating circumstances would be obliterated" In the case of totaram Ichharam V/s. Dattu Mangu AIR 1943 Bombay 143 the principle of appointment of commissioner ex-parte was approved. The same view has also been expressed by the Allahabad High Court in the case of Suraj Pal and others v. Smt. Moora alias Morhla and others, AIR 1973 All 148 . The same is the view taken by a Division Bench of the Kerala High Court in the case of Maroliachuthan V/s. Kunhipathumma, AIR 1968 Kerala 28 where their Lordships observed that an order for issue of a commiision for local investigation without issue of notice under Order XXVI, Rule 9 cannot be characterised as without jurisdiction. I am in respectful agreement with the views of the Division Benchs of the kerala High Court and Andhra Pradesh High Court in Maroli AchuiHon s case (supra) and Chalapnti Veeramas case (supra) respectively as also a single judge decision of the Allahabad High Court in Suraj Pals case. I hold for the reasons aforesaid that even if Order XXVI, Rule 9 is read along with Order XXVI, Rule 18, appointment of Advocate Commissoner without notice to the parties is valid, legal ana binding and the law in this regard has not been correctly decided in the ease of Smt. Mandera Mukhcrjees (supra ). 8. The other question is whether in the case of Smt. Mandera Mukherjee (supra) a single Judge of this Court has correctly laid down the legal consequences of failure to comply with the provisions of Order XXVI, Kule 18 CPC. 9. Smt. Mandera Mukherjees case (supra) has relied upon Latchan Naidu case (supra), which was not followed in a later decision of the same High court in the case of Moosa Kutti (supra ). In Latchan Naidus case even the commissioner did not issue notice to the parties for apperanoe before him. This was not the position in Smt. Mandera Mukherjees case. In Smt. Mandera mukherjees case the Commissioner bad given notice to the parties for appearance before him and even then the court held that the irregularity initially committed is not cured. I respectfully disagree with the views expressed by the single Judge on this point as well. 10. The Commissioner appointed under Order XXVI, Rule 9 CPC is an officer of the court and if the Commissioner issues notice to the parties for appearance before him, that subserves the very purpose of Order XXVI, Rule 18. I respectfully disagree with the views expressed by the single Judge on this point as well. 10. The Commissioner appointed under Order XXVI, Rule 9 CPC is an officer of the court and if the Commissioner issues notice to the parties for appearance before him, that subserves the very purpose of Order XXVI, Rule 18. It his been rigbly observed in the case of Mahant Narayana Dossjee Varu v. The Board of Trustees, AIR 1959 Andhra Pradesh 64 that the Commissioner appointed by the Court is in effect a projection of the Court appointed for a particular purpose. The Kerala High Court in the case of Maroli achiuhan (supra) and Allahabad High Court in the case of Suraj Pal (supra)have held that even in absence of a direction to the parties by the court to appear before a Commissioner, the notice issued to the parties by the Commissioner will be sufficient and substantial compliance of Order XXVI, Rule 18, cpc and, therefore, the report would be admissible under Order XXVI, Rule 10, CPC. If, however, there is no direction by the Court to appear before the commissioner as required under Order XXVI, Rule 19 nor the Commissioner takes any steps and/or issues notice for appearance of the parties, the report resulting from inspection cannot be received as evidence under Rule 10 (2)of Order XXVI, CPC. This viewfinds support from the case in Jamil Ahmad taban and others V/s. Mst. Khair-ui-Nisa and others, AIR 1970 Delhi 205. , i fully agree with the above proposition and hold that the Advocate commissioner is a projection of the Court concerned and notice issued by the commissioner for appearance before him is substantial compliance of Order xxvi. Rule 18 and failure of the Court to direct appearance before the Commissioner stands cured. The law laid down in the case os Smt. Mandera mukhtrjee (supra) on this point as well as incorrect. 11. The next question canvassed before me was whether the court adopted correct procedure without insisting the service of a copy of the application for preparation of final decree either on the parties or to their counsel. It is true that there is no time limit for the purpose of moving the court for prepartion of final decree and the parties may not be aware of such step having been taken by one of tha parties. It is true that there is no time limit for the purpose of moving the court for prepartion of final decree and the parties may not be aware of such step having been taken by one of tha parties. A person has to file an application under Order XXVI, Rule 13 CPC, whereupon the court issues a commission for partitioning the property and invariably a notice is sent to the non-appearing parties for prepartion of final decree. In this connection my attention has been drawn to a decision of this Court in Abul Hat V/s. Rahatullah Mian and another, 1974 BBCJ 351 , as well as a decision of Calcutta high Court in Sunsh Chandra Barterjee V/s. United Bank of India and another, air 1961 Cal 534 . In my opinion, all that is required under the scheme of order XXVI is information to the parties of the appointment of commissioner for partitioning the property and the parties must have notice about it either from the Court or from the Commission In Abul Hals case this Court observed that no attempt was made to inform the petitioner about the proceeding of the final decree in the suit. In the instant case the parties had information about the proceeding before the Commissioner and they bad all appeared before the Commissioner and participated in the proceeding. Therefore this case is of no help to the opposite party. 12. Even though the legal question referred to for our consideration has been decided in favour of the petitioner, I find considerable difficulty in interfering with the order of the court below allowing all the parties to file objection to the Advocate Commission rs report. I say so because on perusal of the ordersheet of the court below I find that on receipt of the report of the Advocate Commissioner the court has neither shown the order to the lawyers of the parties or directed issuance of notice to the parties to file objection. The party who got the Advocate Commissioner appointed only appeared along with her mother, who is plaintiff in the suit. The party who got the Advocate Commissioner appointed only appeared along with her mother, who is plaintiff in the suit. The case was adjourned from the date to the other in a routine manner awaiting objection, and then after annual vacation the report was confirmed without any objection having been filed by any of the defendants, Tha parties may not have any knowledge when the Commissioner submitted his report in order to enable them to file their objection to the report of the commissioner. In the initant case the report was filed almost after three years from the appointment of the commissioner and is not expected that the defendants will be attending the court during all this time. It is the duty of a court to show the order to the lawyer appearing in the case for the respective parties and if for any reason that course is not possible a notice for filing objection ought to be invited before the report can be confirmed. The Commissioner may also inform the parties that he is filing his report; on such and such date on the parties if so think may appear and file their objection. This right uf the party flows from the following words of Order XXVI, Rule 14 (2) CPC. . . " and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm vary or set aside the same. " In short, the parties must have knowledge of the date when the report is transmitted to the court by the advocate Commissioner in order to enable the parties to resort to their right conferred by these words extracted above. In the instant case none of the orders prior to 13-11-1984, the date of confirmation of the Advocate Commissioners report, discloses any intimation to the defendants. Our attention has been drawn to paragraph Nos.13 (vii), 14, IS and 16 of the counteraffidnvit in this connection. In these paragraph defendant-opposite party nos.1 to 5 have asserted that they had absolutely no notice of the filing of the report and reference to the name of the lawyer in the order dated 31-8-1984 and 13-11-1984 have been incorrectly stated since the lawyer named in the order was not the lawyer of defendant Nos.1 to 5. In these paragraph defendant-opposite party nos.1 to 5 have asserted that they had absolutely no notice of the filing of the report and reference to the name of the lawyer in the order dated 31-8-1984 and 13-11-1984 have been incorrectly stated since the lawyer named in the order was not the lawyer of defendant Nos.1 to 5. Be that as it may, we are satisfied that the defendants had no fair opportunity to file on objection to the Advocate Commissioners report nor they appeared before the court prior to its confirmation. Partition of family property is a valuable right and it is very difficult to assume that persons interested in the partition of properties by metes and bounds will be absolutely indifferent particularly when the suit was keenly contested by the defendants. The circumstances only show that the defendants were not aware of the filing of Advocate Commissioners report. It also appears that those were days when courts were visited with judicial officers strike followed by non-gazetted employees strike. There has been a mention thereof in the counter-affidavit. I do not think tbe order affording opportunity to the defendants by the impugned order occasioned failure of justice. On the other hand, it will be advancing tbe cause of justice and avoid irreparable injury which may likely to ensure by our interference. 13. In the result, the civil revision fails on the limitted ground indicated above. In view of long delay I will not direct issuance of notice by the court below to the parties concerned sines they have appeared before this Court. On the contrary, I direct all the parties to appear before the Court on 18-11-1991 and the court will give them two weeks time to file their objection and proceed to dispose of the objection expeditiously. There will be no order as to costs. Revision dismissed.