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2008 DIGILAW 244 (CAL)

Bom Sas Ashim Das v. Kajal Deb

2008-02-28

S.P.TALUKDAR

body2008
Judgment :- (1.) THE defendants/petitioners by filing the instant application under Article 227 of the Constitution of India has challenged the Order No. 80 dated 12th april, 2006 passed by the learned 1st Court, Civil Judge, Junior Division, alipore in Title Suit No. 53 of 2000. (2.) BY the said order the learned Trial Judge rejected the objection raised by the defendants/petitioners against the Commissioners report and accepted the said report. (3.) IT appears that the opposite parties as plaintiffs filed an application under Order 26 Rule 9 of the C. P. Code praying for local investigation. The matter was heard and after hearing both the parties, the learned Court allowed the prayer for such local investigation and proceeded with the matter by giving appointment to a learned Advocate Commissioner. The Commissioner thereafter proceeded with the work as per direction given in the writ of commission and submitted his report. Thereafter, such objection was raised. (4.) APART from various other grounds taken in the said application challenging the report of the Commissioner, the petitioners/defendants mainly laid emphasis on the ground that such commission work was not held after due service of notice upon the parties or their learned Counsel or agents and the commission work which was done after expiry of the date for submission of report cannot be accepted as the Commissioner became functus officio from the said date of submission of report. (5.) THE learned Counsel for the petitioners in support of the application submits that it cannot be said that any provision of law or statute is redundant and the Court is required to give effective meaning to such provision. The learned Counsel inviting attention of the Court to the Order 26 Rule 18 of the cpc submits that where a commission is issued, the Court is under obligation to direct the parties to the suit to appear before the Commissioner in person or by their agents of pleaders. The learned Counsel further adds that it is the duty on the part of the Commissioner to serve notice upon both the parties or their Counsel on behalf of the parties. The learned Counsel then submits that this is a mandatory provision and in absence of compliance with such direction, the report of the Commissioner cannot be accepted. (6.) IN this context Mr. The learned Counsel then submits that this is a mandatory provision and in absence of compliance with such direction, the report of the Commissioner cannot be accepted. (6.) IN this context Mr. Majumdar has sought to derive inspiration from a single Bench judgement of the Orissa High Court, in the case of Chaitan das vs. Purnabasi Pattanayak and Ors. , reported in AIR 1988 Orissa 52. His lordship in the said case held that Rule 18 Order 26 is mandatory. It is the duty of the Court to direct the parties to the suit to appear before the survery knowing Commissioner in person or by their agents or pleaders at the time of local investigation. In absence of notice by the Court, notice issued by the commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the survey knowing Commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence. (7.) IT is further submitted by Mr. Majumdar that where the survey knowing commissioner deputed by the Court does not serve notice to any of the parties to the suit before proceeding to the suit property for the purpose of local investigation the report of such investigation which is behind the back of such party, cannot be accepted as evidence. (8.) SO far as the legal proposition is concerned, there is no scope for any controversy in that regard. Law certainly mandates that when a Commissioner is appointed under Order 26 Rule 9 of the C. P. Code, the Court must direct the commissioner to work in presence of both the parties of the suit. It is also for the Commissioner to serve notice on both the parties asking them to be present at the time of commission either personally or through learned counsel or their agents. In absence of that anything done behind the back by one of the parties, inter alia, invites controversy and law does not permit any such controversy to be raised and that too, for no reason. (9.) HERE, in the present case, having regard to the materials on record and stands taken by the Commissioner, it is difficult to accept that there had been no such notice served upon the parties or their Counsel. (9.) HERE, in the present case, having regard to the materials on record and stands taken by the Commissioner, it is difficult to accept that there had been no such notice served upon the parties or their Counsel. (10.) BEFORE proceeding further, it is necessary to mention that Article 227 of the Constitution gives this Court the supervisory jurisdiction. In exercise of this jurisdiction, the Court is only expected to examine whether any action taken or any order passed by any Court or Tribunal was without jurisdiction. Inherent lack of jurisdiction is certainly a matter for consideration of this Court in exercise of its power under Article 227 of the constitution of India. Such exercise of power cannot be so stretched that in can examine the error of fact or error of law, It is neither possible, nor desirable for this Court while dealing with the Article 227 of the Constitution of India to deal with any alleged factual error or mistake of law. It cannot be disputed that a Court or a Tribunal may have the jurisdiction, even to pass a wrong order, and in that event, this Court under Article 227 of the constitution is not expected to set it right though not passed in absence of jurisdiction or beyond the jurisdiction. (11.) MR. Majumdar then submits that Order 26 Rule 18b clearly lays down that the Court is required to fix a time for return of commission. The said provision leads as follows: "the Court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date. " (12.) MR. Majumdar is perfectly justified in pointing out that such an amendment was made in order to ensure that there is no unnecessary delay in trial of case. This is only to expedite the proceedings before a Court. (13.) IN the present case, it cannot be denied that the learned Court fixed a date for submission of report. It is also clear from the copies of the orders passed by the learned Trial Court that a number of dates were fixed for framing issues as well as for other matters. (13.) IN the present case, it cannot be denied that the learned Court fixed a date for submission of report. It is also clear from the copies of the orders passed by the learned Trial Court that a number of dates were fixed for framing issues as well as for other matters. There was no express order extending the time for submission of report. Subsequently, when the report was submitted, the learned Court on the basis of the objection filed by the defendants fixed up a date for hearing the same. The Commissioner was examined and cross-examined and after taking into consideration all relevant such report of the Commissioner was accepted. Mr. Majumdar, in this context, has invited attention of the Court to a Single Bench decision of this court, in the case of Rekha Mukherjee vs. Ashis Kumar Das and Ors. , reported in AIR 1988 (1) Cal page 199. (14.) MR. Pal, learned Advocate, appearing for the opposite parties/plaintiffs refers to section 148 of the Code of Civil Procedure and submits that where any period is fixed or granted by the Court for doing any act, prescribed or allowed by this Court, the Court may in his discretion from time to time extend such period. Order 26 Rule 9 deals with the commission that too, to make local investigation. It does not specifically mention that such commission can only be directed to be held at the instance of any of the parties before the Court. The idea to bold such investigation is quite often for proper identification of a dispute and in absence of such identification it may not be possible for a Court to pass any executable decree. Thus, such local investigation is ordered in order to assist the Court for proceeding with the suit and for effecting adjudication of the dispute raised therein. In any suit in which the Court deems a local investigation to be required for the purpose of elucidating any matter in dispute, the Court may issue a commission. (15.) THUS, the importance of such commission requires to be analysed not in the context as one of the parties is looking for, but more for the purpose of deciding a dispute raised before a Court of Law. (15.) THUS, the importance of such commission requires to be analysed not in the context as one of the parties is looking for, but more for the purpose of deciding a dispute raised before a Court of Law. (16.) THIS Court can also take judicial notice of the fact that ordinarily a person seeking redress before a Court of law is not expected to delay the trial of the suit. It is difficult to expect that such a desire can compel a party to approach this Court and file a suit. Thus, the aforesaid provision being order 26 Rule 18b of the C. P. Code does not deserve to be interpreted in a manner which ultimately may result in demolition of the purpose for which it was interpreted. (17.) AFTER due consideration of all relevant facts and circumstances and in view of the discussion as made above, this Court does not find it necessary to interfere with the impugned order and that too, in exercise of power under Article 227 of the Constitution of India. (18.) ACCORDINGLY, the present application being C. O. No. 2201 of 2006 is dismissed on contest. (19.) THERE will be no order as to costs. (20.) THE interim order, if any, stands vacated. (21.) LET a copy of the order be sent to the learned Trial Court for information and necessary action. (22.) URGENT xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Appeal dismissed.