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2013 DIGILAW 161 (CAL)

Md. Akbar Ali v. Maimun Nesha

2013-03-19

HARISH TANDON

body2013
JUDGMENT : - This revisional application is directed against Order No. 68 dated December 15, 2012 passed by the Civil Judge, (Junior Division), Barrackpore, in Miscellaneous Case No. 23 of 2001 by which an objection, for acceptance of the report by a survey passed Commissioner, is rejected. 2. Initially a suit, under Section 8 of the West Bengal Land Reforms Act, 1955, was decreed on compromise. 3. The compromise decree provides that the petitioners shall give two cents of the property, sought to be preempt in the said proceedings, to the opposite parties. 4. Alleging that the compromise decree has not been obeyed and/or complied with, the opposite parties put the same into execution. 5. Before the executing Court, the decree holders/opposite parties made an application for appointment of a survey passed Commissioner, which was eventually allowed. 6. Investigation was made and the said Commissioner submitted the report but thereafter declined to adduce evidence. 7. Since the said Commissioner refused to appear in the witness box, the decree holders/opposite parties filed another application for appointment of another Commissioner. 8. The executing Court allowed the said application and a report of the said Commissioner is also filed. This time the judgment debtors/petitioners filed an application raising objection for acceptance of the said report. 9. By the impugned order, the executing Court rejected the said application raising objection to the acceptance of the Commissioner’s report as the judgment debtors/opposite parties did not challenge the order by which the said Commissioner was appointed. 10. It further appears that the Court, in a very mechanical and routine manner, without recording the reasons as to why the said objection should not be entertained, disposed of the said application. 11. The learned advocate, appearing for the decree holders/opposite parties, placed reliance upon a judgment of the Kerala High Court, in the case of Dr. P. Subramoniam -vs- K.S.E. Board and others, reported in AIR 1988 Kerala 169, in support of his contention that the report of the Commissioner is merely a piece of evidence and the Court does not enjoin the power either to accept or reject the same. 12. P. Subramoniam -vs- K.S.E. Board and others, reported in AIR 1988 Kerala 169, in support of his contention that the report of the Commissioner is merely a piece of evidence and the Court does not enjoin the power either to accept or reject the same. 12. Order 26 Rule 10 (2) of the Code of Civil Procedure provides that the report of the Commissioner shall form part of the record; but the Court on the application of 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 the manner in which he has made the investigation. 13. If an objection is raised, the Court must consider such objection whether the Commissioner has conducted the investigation within the settled legal parameters or has acted beyond the same. The obvious reasons behind consideration of objection, is that if the Court is otherwise satisfied that the manner of conducting investigation is not proper or in contravention of the settled norms, the Court certainly enjoins power to appoint fresh Commissioner in order to render complete and effective adjudication of the disputes between the parties. 14. There is no quarrel to the proposition that the report of the Commissioner is merely a piece of evidence; even if there is no objection put forth by the adversary, the parties have to prove on the basis of their own case. 15. Therefore, the proposition, as has been tried to be argued by the learned advocate appearing for the opposite parties, that there is no power conferred upon the Court to reject the said report of the Commissioner is not tenable. 16. Furthermore, this Court finds that the impugned order is bereft of any reasons. The Court is duty bound to record the reasons as the litigant has a right to know the reasons for rejection of his application or the lis. Providing reason is one of the facets of fair play policy which should be strictly adhered to. Reason is the backbone of any order, which reflects the mind of the adjudicating authority and, therefore, is also considered to be the heart and soul of the order. 17. This Court, therefore, finds that the impugned order fails on the evil of the principles of the speaking order. Reason is the backbone of any order, which reflects the mind of the adjudicating authority and, therefore, is also considered to be the heart and soul of the order. 17. This Court, therefore, finds that the impugned order fails on the evil of the principles of the speaking order. The order, impugned, is, therefore, not sustainable and the same is hereby set aside. 18. The executing Court is directed to consider the said application afresh upon giving opportunity of hearing to both the parties and shall dispose of the same by passing a reasoned order within three weeks from the date of communication of this order. 19. For abundant precaution it is made clear that this Court had no occasion to go into the merit of the application raising objection and the executing Court shall be free to take decision, without being influenced by any observations, if any made herein, in accordance with law. 20. The revisional application is, thus, allowed. However, there shall be no order as to costs. Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.