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2014 DIGILAW 303 (GAU)

Satipada Saha v. Sadhana Ray

2014-03-12

NISHITENDU CHAUDHURY

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Judgment Nishitendu Chaudhury, J. 1. Heard Mr. S.K. Saharia, learned counsel for the petitioners. By filing this application under Article 227 of Constitution of India the petitioners, namely, Sri Satipada Saha & Smti. Prava Saha, have challenged the order dated 18.11.2013 passed by the learned Munsiff, North Salmara at Abhayapuri, in Title Suit No. 37 of 1997, for rejecting the application of the petitioners submitted on 07.10.2013 praying for appointment of a fresh commission. This application was necessitated in view of the fact that initially a 1st Commission was appointed under Order XXVI Rule 9 of the Code of Civil Procedure and the said report was rejected by the learned Trial Court. The learned Trial Court thereafter appointed a 2nd Commission which submitted report on 23.05.2006 after making the survey and demarcation of the suit land and thereby, the Survey Commissioner identified encroachment of 4 lechas of land by the defendants. The 2nd Commission's report dated 23.5.2006 was rejected by the learned Trial Court on 22.05.2012 observing that both sides had raised objection. 2. Thereafter by filing an application on 07.10.2013, the petitioners made a prayer before the learned Trial Court that a fresh commission be appointed in view of the fact that both the earlier commission reports were rejected by the learned Court. The learned Court found that earlier report submitted on 23.05.2006 was rejected by the learned Trial Court on 22.05.2012 and since no such prayer for fresh commission was made by either of the parties within a long period of 17 months, there is no reason for appointment of a fresh commission. 3. The order dated 18.11.2013 depicts that despite repeated order by this Court to scope of order XXVI Rule 9 & 10 of the Code of Civil Procedure, the learned Trial Courts are still under impression that a Survey Commission's report submitted under Order XXVI Rule 10 of the Code of Civil Procedure needs to be accepted or rejected at the preliminary stage. This Court in the case of Silchar Municipal Board Vs. This Court in the case of Silchar Municipal Board Vs. Eastern Tea State, (1993) 2 GLR 445 discussed the law involving order XXVI Rule 9 & 10 of the Code of Civil Procedure and held that a report submitted by Commissioner is a part of record of the proceeding by operation of law and so Court is not obliged either to accept or reject a report of Commissioner at the preliminary stage of trial. This Court considered the judgment of the Judicial Committee of the Privy Council and a judgment of the Hon'ble Patna High Court in this regard. The nature and character of a report of the Survey Commissioner received the consideration of the judicial committee of the Privy Council in the Case of Chandan Mull, Indra Kumar Vs. Chiman Lal Girdhar Parekh reported in AIR 1940 PC 3 . In that judgment the Judicial Committee of the Privy Council held that a report submitted by a Commission is an opinion of expert. A Court cannot look into truthfulness or otherwise of the said report unless some apparent and glaring irregularities occurring therein are brought on record. 4. Power of Court to issue Commissions originates from Section 75 of the Code of Civil Procedure. It provides that subject to such conditions and limitations as may be prescribed the Court may issue a Commission. The purpose of issuance of Commission is also laid down in Clause-(a) to (g) of the said Section. Making local investigation comes under Section 75(b) of the Code of Civil Procedure. The conditions and limitations as mentioned in Section 75 are laid down in the procedural part of the Code, namely, Order XXVI of the Code of Civil Procedure. Rule 9 of this Order deals with Commissions to make local investigations. Rule 9 shows that the purpose for appointment of such Commission is elucidating any matter in dispute or ascertaining the market value of any property or amount of any mesne profits or damages or annual net profits as the case may be. This, however, is subject to any Rules that may be framed by the State Government in this regard. 5. Rule 10 of Order XXVI of the Code of Civil Procedure deals with procedure of Commissioner. This, however, is subject to any Rules that may be framed by the State Government in this regard. 5. Rule 10 of Order XXVI of the Code of Civil Procedure deals with procedure of Commissioner. Clause-(2) of this Rule provides that the report at depositions recorded by Commissioner appointed under Rule 9 shall be evidence in the suit and shall form part of the records'. It is this Rule which empowers Court to order for examination of Commissioner personally in open Court at the option of any of the parties to the proceeding touching the subject matter of the report submitted or evidence recorded by him. Thus by operation of law, a report submitted by the Survey Commissioner under Order XXVI Rule 10 of the Code of Civil Procedure is a part of evidence. This being only a piece of evidence like any other oral or documentary evidence brought on record by the parties through examining witness, there is no necessity either to accept or reject it at the preliminary stage of trial. After closure of the evidence when the suit is heard and all other evidences are considered, the learned Court has to exercise his discretion either to rely on or not to rely on such report. If objections are filed by any party or parties and prayer for examining the Commissioner is made the learned Court, however, may allow the same and all those materials including the oral evidence of the Commissioner shall also form part of evidence. 6. Once either or both the parties exercise option to examine the Commissioner personally in open Court and thereafter, the Court is of view that a further Commission is necessary to elucidate the materials brought on record, the learned Court is entitled to appoint a fresh Commission on the same question. Appointment of a fresh Commission does not require rejecting the report of the earlier Commission. There may be more than one reports of Commissioner on same point in a given proceeding. All of these reports irrespective of whether conflicting with each other shall be part of evidence. The learned Court after closure of the evidence and while finally deciding the case shall decide all the materials including all the reports so as to adjudicate the matter in dispute. All of these reports irrespective of whether conflicting with each other shall be part of evidence. The learned Court after closure of the evidence and while finally deciding the case shall decide all the materials including all the reports so as to adjudicate the matter in dispute. The usual practice of accepting or rejecting a report of Commissioner, therefore, does not arise and is rather an exercise not authorized by the Code of Civil Procedure. This being the position of law, the orders passed by the learned Trial Court on 22.05.2012 or earlier rejecting the report submitted by the 1st Commission & 2nd Commission are unauthorized and without jurisdiction. 7. Accordingly, this Revision Petition is allowed. Impugned order dated 18.11.2013 is set aside. It is made clear that despite earlier orders passed by the learned Trial Court rejecting two successive reports of Commissioners, the same shall continue to remain part of evidence in this case and the learned Court shall consider all those materials at the time of final hearing. 8. With above observation of the matter, this Revision Petition is allowed. No order as to cost. Petition allowed.