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2015 DIGILAW 886 (CAL)

Chinmayee Saha v. Renuka Halder

2015-10-15

ARIJIT BANERJEE

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JUDGMENT : Arijit Banerjee, J. (1) In the present revisional application the petitioners challenges an order dated 3rd October, 2013 passed by the Court of Civil Judge (Junior Division), Tehatta, Nadia, in connection with Title Suit No. 97 of 1998 renumbered as Title Suit No. 260 of 2004. By the order impugned the Ld. Trial Judge rejected the local inspection report of an Advocate Commissioner appointed under Order 26 Rule 10 of the Code of Civil Procedure on the application of the plaintiffs. (2) The facts of the case, shorn of unnecessary details, are that the petitioner no. 1 was the absolute owner of the suit premises which she gifted to the petitioner no. 2. The petitioner no. 2 executed a power of attorney in favour of the petitioner no. 1 since he resides in Gujarat. The petitioners as plaintiffs filed Title Suit No. 97 of 1998 against the opposite parties/defendants in the court of Civil Judge (Junior Division), 3rd Court at Krishnanagore, Dist. Nadia, claiming declaration of title in respect of the suit property and recovery of possession thereof. The said suit was subsequently transferred to the court of the Civil Judge (Junior Division) at Tehatta, Nadia and renumbered as TS No. 260 of 2004. (3) In course of hearing of the suit, the defendants had filed an affidavit recording an undertaking that if any construction was made which encroached upon the land of the plaintiffs, the defendants would demolish such construction as per the direction of the Ld. Court. (4) The plaintiffs filed an application under Order 26 Rule 10 of the CPC for local investigation as to what extent the defendants had encroached on the plaintiffs’ land. On such application an Advocate Commissioner was appointed to conduct investigation and file a report before the Ld. Court. The Commissioner filed a report before the Ld. Court on 22nd June, 2007. (5) By an order dated 31st July, 2008, the Ld. Trial Court rejected the said report of the Commissioner holding that the same is not a convincing one and further directed the Commissioner to file a fresh report. (6) In terms of the order dated 31st July, 2008 the Commissioner filed another report before the Ld. Trial Court. (7) The defendants filed a written objection against the said report of the Commissioner. (8) By an order dated 3rd October, 2013 the Ld. (6) In terms of the order dated 31st July, 2008 the Commissioner filed another report before the Ld. Trial Court. (7) The defendants filed a written objection against the said report of the Commissioner. (8) By an order dated 3rd October, 2013 the Ld. Trial Court rejected the said second report of the Commissioner also. Aggrieved by the said order, the plaintiffs have come up to this court by way of the present revisional application. Contention of the petitioners:- (9) The only point urged by the Ld. Counsel appearing on behalf of the petitioners is that the court does not have the power to reject or set aside the report of a commissioner filed under Order 26 Rule 10 of the CPC. Order 26 Rule 10 provides as follows:- “R. 10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit_Commissioner may be examined in person.- 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.” Ld. Counsel submitted that if the court is not satisfied with the proceedings of the Commissioner, it may direct further enquiry to be made as it shall think fit but the Commissioner’s report cannot be expunged from the records of the Court. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Even if the court directs further enquiry and filing of a fresh report or issues a fresh commission, the report filed by the Commissioner must remain in the records of the court. The weight to be attached to such report will be for the court to decide but the report cannot be obliterated from the records of the court proceeding. In support of such contention, Ld. Counsel relied on the following decisions:- (a) Sova Rani Bhakat-vs.-Sefali Chakraborty reported in (2012) 2 CLJ 189 . In that case, a Ld. Judge of this court observed that the Ld. Commissioner had answered all the points of investigation in his report and the Ld. Commissioner had given reasons in support of his report and also at the time of deposition, and, therefore, the said report could not be rejected and further investigation was not necessary. (b) Hydrose vs. Govindankufy, reported in AIR 1982 Kerala 49. In that case, a Ld. Single Judge of the Kerala High Court held that when Order 26 Rule 10 prescribes that the report of the Commissioner and the evidence taken by him shall be evidence in the suit, and shall form part of the record, the Court cannot efface it from the record by setting aside the report in the absence of specific power conferred therefor by the statute. Sub-Rule (2) does not specifically provide for wiping out evidence which is already part of the record. It only contemplates a further enquiry and, therefore, a further report which will also become evidence and part of the record by virtue of Sub-Rule (2). If the court is dissatisfied with the proceedings of the first Commissioner, it may not attach much probative value to his report in deciding the issue before it; but that is a different thing from saying that the court can totally ignore the evidence or even delete the report from the record. (c) Dr. Subramoniam-vs.-K.S.E. Board reported in AIR 1988 Kerala 169. In that case, the same Ld. (c) Dr. Subramoniam-vs.-K.S.E. Board reported in AIR 1988 Kerala 169. In that case, the same Ld. Judge who had decided the case of Hydrose (supra) observed that if the mandate of the statute is that the report of the commissioner shall be treated as evidence in the suit, the court cannot set it aside or wipe it out unless it is authorised to do so by the statute. Rules 10 and 12 of Order 26 do not authorise the court to set aside a Commissioner’s report which it is required to treat as evidence; the Rules only permit the order of ‘further enquiry’ where the report already received is unsatisfactory. A power to order further enquiry into a matter is entirely different from a power to set aside or wipe out that which has already become part of the evidence in the suit as a result of the initial enquiry and the mandate of the statute. The word ‘further’ means ‘additional’ or ‘going beyond what exists’. When Rules 10 and 12 refer to further enquiry, what is evidently intended is to collect and bring on record something in addition to what has already been brought in earlier. The intention could not to be wipe out the slate clean and start afresh. (d) Shib Charan Sahu-vs.-Sarda Prasad reported in 172 Indian Cases 751. In that case, it was argued by the appellant before a Division Bench of the Patna High Court that when a Judge issues a commission, if he is dissatisfied with the report of the Commissioner and sees it fit to direct a second commission to issue, he should wipe the first Commissioner’s report off the record entirely, treat it as not being evidence and decide the point on such evidence as may then remain in the shape of the second Commissioner’s report and such further evidence as may be available. The court rejected such argument holding that there is nothing in Order 26 Rule 10 of the CPC to justify such a contention. The court rejected such argument holding that there is nothing in Order 26 Rule 10 of the CPC to justify such a contention. The court observed that it is in the power of the Trial Court to send out a second or even a third commission, and when all the materials are before the court it may at the time of delivering judgment attach very little or no weight to the first Commissioner’s report, but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence. (e) Chottu Maujn-vs.-Gurbhajan Singh reported in AIR 1972 P & H 265. In that case, a Ld. Single Judge of the Punjab and Haryana High Court followed the decision of the Division Bench of the Patna High Court in the case of Shib Charan Sahu (supra) and held that in view of the mandatory provisions of O. 26 R. 10 of the CPC the report of a Commissioner cannot be excluded from being considered altogether as a piece of evidence. However, the value to be attached to such a report is for the court to decide. (f) Radharani Mondal-vs.-Bhima Bharna Dey reported in (1982) 87 CWN 1047. In that case, a Ld. Judge of this court held that an order issuing a second commission without assigning any reason why the report of the previous Commissioner is ignored is not only contrary to the provisions of Order 26 Rule 10(3) of the CPC but is to be condemned. In view of the nature of the provisions of the CPC, without giving any reason why further enquiry is to be made, a report cannot set aside and further enquiry cannot be directed. (g) M. Ramesh Babu-vs.-M. Sreedhar reported in (2009) 4 AndhraLT 780. In that case, a Division Bench of the Andhra Pradesh High Court observed that there is nothing in Rule 10 (3) of Order 26 which suggests setting aside the earlier report or totally scrapping the earlier report. Moreover, R. 10 (2) provides that the report of the Commissioner shall form part of the record and shall be evidence in the suit. The evidence has to be appreciated best on the settled legal principles. Moreover, R. 10 (2) provides that the report of the Commissioner shall form part of the record and shall be evidence in the suit. The evidence has to be appreciated best on the settled legal principles. The court went on to observe that in cases where the court is of the opinion that the report of the expert is not satisfactory, where the expert has not followed the required procedure, where the findings of the expert appear to be prima facie incorrect, where there is an error on the face of the record, where it appears that the Commissioner or expert had acted in a partisan manner and where the deficiency in the report cannot be completed by the same Commissioner or expert or where the court feels that referring the matter to a second Commissioner would be useful for better appreciation of evidence and for reaching just conclusions, the court may refer the matter to a second Commissioner or to a second expert for his opinion, even without setting aside the earlier report or opinion. (10) The Ld. Counsel referred to Order 26 Rule 14 of the CPC. Rules 13 and 14 of Order 26 deal with commissions to make partition of immovable property. Sub Rule (3) of Rule 14 of Order 26 provides that where the court confirms or varies a report of reports of the Commissioner, it shall pass a decree in accordance with the same as confirmed or varied but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. Ld. Counsel put emphasis on the difference in language between Sub Rule (3) of Rule 10 and Sub Rule (3) of Rule (14); whereas the former does not contemplate setting aside of a commissioner’s report, the letter expressly envisages that a Commissioner’s report may be set aside by the court. Contention of the Opposite Parties:- (11) Ld. Counsel appearing for the opposite parties on the other hand contended that even though Order 26 Rule 10 (3) of the CPC does not expressly provide for setting aside of a Commissioner’s report, the court has inherent power to set aside such a report if the same is ex facie erroneous or perverse. Contention of the Opposite Parties:- (11) Ld. Counsel appearing for the opposite parties on the other hand contended that even though Order 26 Rule 10 (3) of the CPC does not expressly provide for setting aside of a Commissioner’s report, the court has inherent power to set aside such a report if the same is ex facie erroneous or perverse. If the report is prepared by ignoring established procedures or if there is error apparent on the face of the report, the court is not obliged to retain the same as part of its record. If the report is completely unreliable, no useful purpose will be served by keeping it in the records of the case and the same will only add to the volume of the court’s records. In this connection Ld. Counsel relied on the following decisions:- (a) Gopal Behera-vs.-Lokanath Sahu reported in AIR 1991 Orissa 6. In that case, a Ld. Judge of the Orissa High Court held that in a case where objection is raised to the report of the Commissioner, the court has to be satisfied that the local investigation was complete and free from error before it accepts the report. In a case where the Commissioner is examined as witness either by the court or by any party, with permission of the court, this point has to be judged in the light of the evidence of the Commissioner in court. In case there are serious discrepancies between the statement made by the Commissioner in court and contents of the report or the evidence recorded during local investigation, it will not be safe to conclude that the report is free from error and is reliable and acceptable. A Commissioner’s report is intended to assist the court in a proper understanding and appreciation of the matter in dispute. If a defective report is accepted ignoring the serious discrepancies in the evidence of the Commissioner and his report and materials recorded during local investigation, such a report instead of assisting the court is likely to mislead it. In the facts of that case, the High Court held that the Lower Court should have rejected the Commissioner’s report and should have issued a fresh commission. (b) Gian Chand Khatana-vs.-Inderjit Chohdha reported in AIR 2003 Himachal Pradesh 49. In the facts of that case, the High Court held that the Lower Court should have rejected the Commissioner’s report and should have issued a fresh commission. (b) Gian Chand Khatana-vs.-Inderjit Chohdha reported in AIR 2003 Himachal Pradesh 49. In that case, a Division Bench of the Himachal Pradesh High Court observed that the local investigation by a Commissioner is merely to assist the court and the Commissioner’s report is not binding on the court which can arrive at its own conclusion on the basis of evidence recorded in variation to such a report. Evidentiary weight of a report will depend on the facts and circumstances of the case and the evidence adduced by the parties on record. Where a report of the Commissioner is absolutely necessary and the trial court finds the report of a Commissioner unsatisfactory or untenable, then the proper course for the appellate court is to direct appointment of another Commissioner for a fresh local investigation or to direct the trial court to appoint another local Commissioner or to call for a fresh report from the local Commissioner already appointed. (c) L. Srinivasan Chettair-vs.-L. Santhanam Chettiar reported in 1997 (2) CTC 228 . In that case, a Ld. Judge of the Madras High Court observed that a Commissioner’s report is only an evidence in the case. Either the court can say that the evidence is not admissible or say that it requires more particulars for being accepted in evidence. By holding that the report is not acceptable or a fresh report is required, the court is not expressing any opinion about the rights of the parties nor is there adjudication of rights. The court referred to a decision of the Kerala High Court in the case of A. Narayanai-vs.-Kittan reported in (1996) 2 KLJ 498 wherein it was observed that the trial court is so dissatisfied with the whole proceedings of the Commissioner that it thinks it better to discard the whole report and start afresh, it may do so. Where the court is of the opinion, on considering the objections of the parties, if any, that the Commissioner has so misconceived his duties as to render his report valueless, it may wipe out and supersede the first report by a specific order to that effect and may issue a fresh commission. (d) Melabhai Kevaldas Prajapati-vs.-State of Gujarat reported in 1999 (3) GCD 1707 . (d) Melabhai Kevaldas Prajapati-vs.-State of Gujarat reported in 1999 (3) GCD 1707 . In that case, a Ld. Judge of the Gujarat High Court held that if the report prepared by the site inspection of the disputed property by a Commissioner is found by the court to be defective or lacking in material particulars, the appointment of the same Commissioner by the Court is perfectly legal and justified and it acts in consonance with the purpose of O. 26 R. 10 of the CPC to direct the same Commissioner to remedise the deficiencies or to quash or set aside the earlier report and appoint a fresh Commissioner for preparation of a fresh investigation report of the disputed property. Court’s View:- (12) The procedure of issuing commission for local investigation laid down in Order 26 Rules 9 and 10 is for the purpose of elucidating any matter in dispute. A scrutiny of the provision of Rule 10 of Order 26 as a whole makes it clear that the Commissioner after local inspection and after reducing to writing the evidence recorded by him, has to return such evidence together with his report in writing signed by him to the court. 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. The court may examine the Commissioner personally in open court relating to any of the matters referred to him or mentioned in his report or as to the manner in which he has made the investigation. His report is nothing more than a piece of evidence and has no other sanctity. Like any other piece of evidence the court is competent to rule on the admissibility of the Commissioner’s report. If the court finds that the report is completely unreliable or suffers from any other infirmity on the face of it, the court is not powerless to reject the report. (13) With respect, I am unable to agree with the view of the Ld. Judge of Kerala High Court in the cases of Hydrose (supra) and Dr. Subramoniam (supra) to the effect that the court does not have the power to set aside a Commissioner’s report filed under Order 26 Rule 10 of the Code of Civil Procedure. (13) With respect, I am unable to agree with the view of the Ld. Judge of Kerala High Court in the cases of Hydrose (supra) and Dr. Subramoniam (supra) to the effect that the court does not have the power to set aside a Commissioner’s report filed under Order 26 Rule 10 of the Code of Civil Procedure. In certain cases and frequently in cases involving property disputes, local inspection of the concerned spot becomes necessary. Since it is not possible or practical for a Judge to personally go and inspect the spot, he issues a commission thereby appointing a Commissioner to carry out that job. This is done with the object that the report filed by the Commissioner after local investigation would assist the court to adjudicate upon the disputes between the parties. The report is no way binding on the court. If the court finds that the report is ex facie erroneous or vague or lacking in material particulars or inherently inconsistent or otherwise completely unreliable for any other reason, the court is at liberty to set aside such report. To retain such a report in the records of the court is more likely to confuse than to assist it. Although Rule 10 of Order 26 does not expressly provide for setting aside of a Commissioner’s report, in my opinion, the Court can do so in the exercise of its inherent power. If the court finds a Commissioner’s report to be completely useless and of no assistance to it, it would be futile to preserve the same in the records of the court. (14) In the case of Sova Rani Bhakat (supra) cited on behalf of the petitioners, it was not held that the court does not have the power to set aside a Commissioner’s report filed under Order 26 Rule 10 of the CPC. In the facts of that case, the court was satisfied with the report and held that no further investigation was necessary. In the case of Shib Charan Sahu (supra), the Patna High court merely held that it is not absolutely necessary to wipe out the Commissioner’s report before issuing a second commission. In Radhanani Mondal (supra), this court held that prior to issuing a second commission, reasons should be recorded as to why the report of the first Commissioner deserves to be ignored. In Radhanani Mondal (supra), this court held that prior to issuing a second commission, reasons should be recorded as to why the report of the first Commissioner deserves to be ignored. This court nowhere stated that the court does not have the power to set aside the Commissioner’s report. Similarly, in the case of M. Ramesh Babu (supra), the Andhra Pradesh High Court merely held that even without setting aside the earlier report, a second commission can be issued. (15) The view I have taken finds support in the decisions of Gopal Behera (Orissa High Court) (supra), L. Srinivasan Chettair (Madras High Court) (supra) and Melabhai Kevaldas Prajapati (Gujarat High Court) (supra). (16) In the case of Swami Premananda Bharathi-vs.-Swami Yogananda Bharathi reported in 1985 Kerala LT 144, a Division Bench of the Kerala High Court was considering, inter alia, Order 26 Rules 11 and 12 of the CPC. Rule 12 is in pari materia with Rule 10 of Order 26. Rule 12 (2) provides that the proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. Rule 12 does not expressly provide that if the court is dissatisfied with the report, the court may set aside the report. However, the Kerala High Court after discussing several authorities observed that time and again the courts have condemned or deprecated the tendency of the subordinate courts in the appointment of a second commissioner before superseding the first commissioner’s report and proceedings. That the first Commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another Commissioner to do the work is a wholesome rule of law based on public policy. Hence, the Division Bench of the Kerala High Court has also taken the view that the Court can set aside a Commissioner’s report. (17) This court in the case of Balai Chandra Ghose-vs.-Tarapada Ghosh reported in 70 CWN 266 observed that a Commissioner’s report in that sense cannot be said to bind a court of law if the court of law finds that the report even though formerly accepted, for reasons adduced at the trial through witnesses and other circumstances, is not acceptable. (17) This court in the case of Balai Chandra Ghose-vs.-Tarapada Ghosh reported in 70 CWN 266 observed that a Commissioner’s report in that sense cannot be said to bind a court of law if the court of law finds that the report even though formerly accepted, for reasons adduced at the trial through witnesses and other circumstances, is not acceptable. As a matter of ordinary practice and procedure when a Commissioner’s report is challenged by a party, notice is given to the other side; then the court hears the parties and finally makes an order either accepting or rejecting the report of the Commissioner. Such an order of acceptance or rejection should not as a normal procedure be lightly set aside. If a Commissioner’s report is accepted by a court but later at the trial the report is found to be wanting, the court is free to reject the report. (18) In view of the aforesaid, in my opinion, the court has full power to reject or set aside a Commissioner’s report filed under Order 26 Rule 10 of the CPC. Hence, the Ld. Court below did not commit any jurisdictional error in the sense of doing something which it had no power to do by rejecting the Commissioner’s report. I have carefully gone through the order of the Ld. Trial Court which is impugned in this application. It is a well-reasoned order and clearly records the reasons as to why the report should be rejected. This court while exercising power under Article 227 of the Constitution of India does not sit in appeal over the judgment and order impugned. There is no error apparent on the face of the impugned judgment and order. While exercising its supervisory jurisdiction over courts and tribunals inferior to it, the High Court does not act like the proverbial bull in a china shop. The jurisdiction under Article 227 is not meant to correct any and every error in a judgment/order of a lower court/tribunal. Only if there is a grave error of law or fact on the face of the order impugned which if not corrected will cause miscarriage of justice, the High Court will interfere in a revisional application. (19) I find no reason to interfere with the order impugned in the present application. Accordingly this application fails and is dismissed without however, any order as to costs. (19) I find no reason to interfere with the order impugned in the present application. Accordingly this application fails and is dismissed without however, any order as to costs. However, since the suit is of 1998, the trial court is directed to dispose of the suit at an earlier date and in any event within a period of eight months from the date of communication of this order. (20) CO 4018 of 2013 is accordingly disposed of.