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2004 DIGILAW 496 (PAT)

Ram Dayal Sharma v. Dhanmanti Devi

2004-04-30

S.N.HUSSAIN

body2004
Judgment 1. Heard learned counsel for the parties. 2. The plaintiffs have filed this civil revision against the order dated 10.6.2002 passed in Title Suit No. 158/92 by which the learned Second Munsif, Vaishali at Hajipur, allowed the defendants petition for rejecting the report of the Pleader Commissioner who has failed to appear for deposing in support of his report inspite of summons sent by the learned court below. 3. The petitioners had filed the aforesaid suit for declaration of their title and removal of encroachment and also for restraining the defendants from creating any trouble. In the aforesaid Title Suit a Survey knowing Pleader Commissioner, namely Sri Arun Kumar Sinha was appointed by the learned court below who submitted his report and also deposed in favour thereof as a witness on 29.2.2000. Thereafter, the plaintiffs-petitioners raising objections filed a petition for appointment of another Survey knowing Pleader Commissioner and accordingly the learned court below appointed another Survey knowing Pleader Commissioner, namely, Sri Braj Kishore Sharma who also submitted his report on 23.1.2002 to which the defendants filed an objection for rejecting the said report on several grounds. In the aforesaid circumstances, the learned court below issued summons dated 8.4.2002 directing the said Survey knowing Pleader Commissioner to appear in court and give evidence regarding his report. Thereafter, on 29.5.2002 the defendants also filed a petition in the learned court below for directing the plaintiffs to produce the Pleader Commissioner as a witness failing which the report submitted by the said Pleader Commissioner be rejected. To this petition the plaintiffs filed a rejoinder stating that the defendants were trying to delay the disposal of the suit which was ready for final argument. 4. The learned court below by his impugned order allowed the petition of the defendants and rejected the report of the said Survey knowing Pleader Commissioner stating that he had no option left but to reject the report of the said Pleader Commissioner who had failed to appear to depose in court even after issuance of summons and there was no evidence to support the report given by him. 5. 5. The learned counsel for the petitioners has challenged the said order on the ground that the learned court below should not have rejected the report only on the ground that the said Pleader Commissioner did not come to depose as the learned court below had several options as detailed in the provisions of Order-XVI, Rule -10, C.P.C. for taking action against the said Pleader Commissioner and forcing him to appear in court. The learned counsel for the petitioners has relied upon a decision in a case of Fuleshwar Jha vs. Smt. Gayatri Devi & Ors. reported in 1991(1) P.L.J.R., 433, Paragraph - 7 of which reads at follows: "From a bare perusal of the aforementioned provisions, it is clear that these provisions apply only to such a person to whom a summon has been issued either to attend to give evidence or to produce a document and if that person fails to comply the direction issued to him. They do not apply in regard to such a person who appears suo motu or at the instance of the party." The learned counsel for the petitioners further submitted that the learned court below has not decided the real controversy of the case, according to the provisions of Order XVI Rule-10(2) C.P.C. and had passed the impugned order illegally shifting the responsibility of proving the report upon the plaintiffs, although, the onus to prove was upon the defendants who were challenging the said report. 6 The learned counsel for the Opposite parties, on the other hand, submitted that so far the provision of Order-XVI Rule-10 C.P.C. is concerned, it is in respect to deposition of general witnesses, but here in the instant case the matter was with respect to deposition of Survey knowing Pleader Commissioner who was the only person who could have proved the report submitted by him. He further submitted that the case law cited by the learned counsel for the petitioners was not with respect to the issue involved in the instant case rather another Full Bench decision of this Court in a case of Asifunisa & another vs. Ali Imam reported in 1992(1) P.L.J.R., 380, fully covers the facts and circumstances of this case and in that case it has been specifically mentioned that if the Commissioner did not support his report, the report could have no legal value. 7. 7. Having heard the learned counsel for the parties and having considered the materials produced by them, I find that there was objection to the report of the Pleader Commissioner and in that circumstances it was incumbent upon the Commissioner to depose with respect to his report and face cross-examination by the objectors so that his report could be verified before taking it in evidence. It may be noted in this connection that a Commissioner exercises a quasi judicial function and such a functionary must perform his duty within the four corners of the provisions of law and if he fails to do so, the report submitted by him will be a nullity and could have no force in law and thus the learned court below rightly rejected the report submitted by the said Survey knowing Pleader Commissioner. Hence, I find no illegality or jurisdictional error in the impugned order of the learned court below and thus, this civil revision application is accordingly dismissed.