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2007 DIGILAW 894 (AP)

G. Shashikala, Hyderabad v. G. Kalawathi Bai

2007-09-14

L.NARASIMHA REDDY

body2007
Judgment :- The petitioner challenges the order dated 30-04-2007 passed by the Court of Additional Judge, City Small Causes Court, Hyderabad, on a memo filed by the respondents herein, in the course inquiry into the mesne profits, in O.S.No.1402 of 1992. The 1st respondent filed the suit against the petitioner and the 2nd respondent for the relief of possession of the suit schedule property and recovery of mesne profits, for the use and occupation thereof, as well as future damages. The trial Court decreed the suit. Aggrieved thereby, the petitioner filed C.C.C.A.No.40 of 2002. Interim stay of the decree of the trial Court was passed, but permission was accorded for determination of mesne profits. Therefore, the 1st respondent filed I.A.No.129 of 2002 for ascertainment of mesne profits. The trial Court appointed a Commissioner for ascertainment of mesne profits. The Commissioner, in turn, filed a report, together with the evidence recorded by him. The report was objected to, by both the parties to the I.A. Therefore, the trial Court passed an order dated 31-08-2006. It was directed that the report submitted by the Commissioner be not taken into consideration, and posted the matter for further steps, on a subsequent date. An observation was made to the effect that the views expressed by the Commissioner shall not be taken into account. On 05-04-2007 the trial Court observed that fresh evidence must be taken on record, to determine the mesne profits, indicating that the report submitted by the Commissioner, as well as the evidence recorded by him, is totally eschewed from consideration. It was in this context, that the 1st respondent filed a memo, dated 11-04-2007, bringing to the notice of the Court, the order dated 31-08-2006. The petitioner filed a counter-affidavit, opposing the memo filed by the 1st respondent. After hearing both the parties, the trial Court allowed the memo, and directed that the evidence recorded by the Commissioner, and the observations made by him, shall be taken into account, during the further inquiry. Learned counsel for the petitioner submits that, once the report of the Commissioner was eschewed from consideration, the evidence recorded by him, cannot be taken into account. Learned counsel for the petitioner submits that, once the report of the Commissioner was eschewed from consideration, the evidence recorded by him, cannot be taken into account. He places reliance upon Order XXVI Rule 10(2) of C.P.C. Learned counsel for the 1st respondent, on the other hand, submits that the report submitted by a Commissioner, is not binding in its entirety, and even where the views, expressed by a Commissioner, are not accepted by a Court, the material that gave rise to the report, cannot be ignored from consideration. During the course of inquiry into mesne profits, on the basis of a decree passed in O.S.No.1402 of 1992, a Commissioner was appointed under Order XXVI Rule 9 C.P.C. The Commissioner, in turn, recorded evidence and submitted his report, together with the relevant record. It so happened, that, neither the decree holder, nor the judgment-debtor were satisfied with the report, and both of them represented to the trial Court, that the report be eschewed from consideration. It was in this context, that the trial Court passed an order dated 31-08-2006, which inter alia reads as under: “In view of the representation made by the counsel present, the report of the commissioner is not considered and the petition is posted to 7-9-2006 for hearing both the parties. It is made clear that while ascertaining the mesne profits, evidence recorded by the commissioner and the observations made by him while executing the warrant will have to be considered”. Subsequently, the matter underwent certain adjournments. On 05-04-2007, the trial Court directed the parties to lead evidence, afresh. In the light of this development, the 1st respondent filed a memo to the effect that the evidence recorded by the Commissioner, as well as the observations made by him, need to be taken into account, in view of the order dated 31-08-2006, passed by the trial Court, and the necessity to adduce evidence may not arise at this stage. The trial Court accepted the same. According to the petitioner, once a report was rejected from consideration, the evidence, that form part of the record, cannot be separated, much less, taken into consideration. The trial Court accepted the same. According to the petitioner, once a report was rejected from consideration, the evidence, that form part of the record, cannot be separated, much less, taken into consideration. Reliance is placed upon the bracketed portion in sub-rule (2) of Rule 10 of Order XXVI C.P.C. It reads as under: “O.XXVI R.10 (1) xxxx (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 purport of sub-rule (2) is, that the report, as well as depositions recorded by a Commissioner, appointed under Rule 9; would form part of record. What is suggested in the bracketed portion of the sub-rule is that mere evidence cannot be filed, or be treated as part of record, unless it is accompanied by the report. Even where the Court refuses to accept the findings recorded in the report, it would not cease to be part of record. Axiomatically, the evidence that is filed along with a report does not cease to be part of record, on the ground that the finding in the report was not accepted. The acceptance or otherwise of a report, submitted by a Commissioner, would not have any effect upon the report, as well as the evidence, as to their being part of the record. From a perusal of the order under revision, it is clear that on 05-04-2007 the trial Court issued a direction, which does not accord with the observations made in its order dated 31-08-2006. Through its order passed on the memo, the trial Court had set the record correct. Therefore, it does not warrant any interference. The C.R.P. is accordingly dismissed. There shall be no order as to costs.