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2011 DIGILAW 407 (ORI)

Pradip Kumar Ashe v. Nikhil Chandra Ashe

2011-08-05

B.K.NAYAK

body2011
JUDGMENT B.K. NAYAK, J. — Order dated 28.9.2010 passed by the learned District Judge, Balasore in RFA No.103 of 2008 allowing the defendants-appellants’ petition u/o 29 rule 9, CPC for deputing a Civil Court Commissioner to make local investigation is the subject matter of challenge in this writ petition. 2.The undisputed facts are that one of the issues, amongst others, is whether the disputed building stands on one or the other plot as contended by the parties. A private Commissioner taken by the plaintiff during the pendency of the suit and the Commissioner’s report with regard to the location of the building was accepted by the trial Court. The trial Court decreed the suit against which the defendants filed the regular First Appeal in question. The defendants-appellants filed a petition u/o 26 rule 9, CPC for deputation of a Civil Court Commissioner for local investigation for determining about the existence of the building in question on one plot or the other as claimed by the parties. 3.Without going into the question whether the evidence on record coupled with the report of the Commissioner submitted during the trial was sufficient to determine the question or not, straightway the appellate Court has allowed the petition and directed for deputation of a Civil Court Commissioner on the ground that there is no bar for deputation of a second Commissioner even though the report of the previous Commissioner is available and further that by deputation of the Commissioner the plaintiff-respondent will not be prejudiced. 4.There is no quarrel over the proposition that an appellate Court can also appoint a Civil Court Commissioner for local investigation if the situation so demands. But he has to be satisfied about the necessity of appointing such a Commissioner. The necessity arises when on consideration of the available evidence on record the Court is not able to arrive at a proper conclusion with regard to the dispute in question as per rival claims of the parties. 5.The scope of appointment of survey knowing Commissioner u/o 26 Rule 9, CPC has been elucidated in the case of Kunjabehari Mohanty (and after him) Subas Chandra Mohanty and another v. Kishore Chandra Jagadev Ray and others; 73 (1992) CLT 197 to the following effect :- “........ 5.The scope of appointment of survey knowing Commissioner u/o 26 Rule 9, CPC has been elucidated in the case of Kunjabehari Mohanty (and after him) Subas Chandra Mohanty and another v. Kishore Chandra Jagadev Ray and others; 73 (1992) CLT 197 to the following effect :- “........ we have no hesitation to hold that an appellate Court when rejects a Commissioner’s report is not bound to remit the matter to the trial Court for appointment of a fresh Commissioner and getting a fresh report in every case. It would be fully within its jurisdiction after rejecting the Commissioner’s report to decide the appeal on the residue of evidence if it is possible on the part of the appellate Court. But where the nature of dispute is such and the appellate Court after rejecting the Commissioner’s report is not in a position to decide the dispute on the residue of the evidence, then in such a case it will have to remit the matter to the trial Court with a direction to appoint a fresh Commissioner for obtaining a fresh report...” 6.Admittedly, in the instant case, the report of a private Commissioner appointed in the trial Court is available on record and the Court below has not yet considered the report of the said Commissioner along with other evidence on record which can be done only at the time of hearing of the appeal. If on consideration of the report of Commissioner as well as the evidence on record the trial Court would be unable to decide the dispute then only if may be just and proper on his part to direct for appointment of a fresh Commissioner. Evidently, that stage has not reached. The ground on which the petition filed by the appellants has been allowed are not germane for deciding the question whether another Commissioner is to be appointed or not. Accordingly, I set aside the impugned order and direct that the application of the defendants-appellants for appointment of a survey knowing Commissioner is to be considered by the lower appellate Court at the time of hearing of the appeal and if after scanning the evidence on record the appellate Court comes to a conclusion that the dispute cannot be resolved on the basis of the evidence on record the question of appointment of a survey knowing Commissioner shall be considered. 7.With the aforesaid observation the writ petition is disposed of. The disposal of the appeal pending before the lower Court be expedited. Petition disposed of.