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2016 DIGILAW 626 (CAL)

Arati Sahu v. Bijoy Laksmi Suin

2016-08-09

HARISH TANDON

body2016
JUDGMENT : 1. This revisional application is directed against three orders, namely, order no. 40 dated 7th April, 2016, order no. 43 dated 12th May, 2015 and order no. 45 dated 14th June, 2016 passed in O.S. No. 2 of 2014 by the learned Additional District Judge, 2nd Court, Contai. 2. On conjoint reading of the aforesaid three orders it can be gathered that the Trial Court kept the applications taking exception to the report submitted by the Handwriting Expert on record to be decided at the stage of trial. 3. According to Mr. Hiranmoy Bhattacharya, learned advocate appearing on behalf of the petitioners, Rule 243 of the Civil Rules and Orders provides that the Court shall consider the objections, if any, of the parties to the report of the Commissioner and may either accept the report or may pass an order for appointing another Commissioner. 4. The interpretation sought to be given to the aforesaid provision is that the law permits the objection to be taken out against the report of the Commissioner and once such objection is filed, it is a duty cast on the Court to consider the same before directing the parties to go to trial. 5. I am unable to accept the submission of Mr. Bhattacharya, more particularly, the manner in which the interpretation is given to the provision of Rule 243 of the Civil Rules and Orders. It would be profitable to quote the aforesaid Rule before proceeding to deal with the above point. The said provision is quoted below : “The Court shall consider the objections, if any, of the several parties to the report of the Commissioner and may accept the report or any portion of it or pass such orders as it thinks fit under Order XXVI Rule 10(3).” 6. From the meaningful reading of the said provision it is manifest that the Court shall consider the objections taken against the report of the Commissioner, which cannot be said to be a casual exercise or an idle formality. Though the report of the Commissioner is merely an expert opinion, yet it is treated as a part of the record. From the meaningful reading of the said provision it is manifest that the Court shall consider the objections taken against the report of the Commissioner, which cannot be said to be a casual exercise or an idle formality. Though the report of the Commissioner is merely an expert opinion, yet it is treated as a part of the record. The Court is not bound by the conclusion of the expert expressed in the report as the same would be considered as other piece of evidence and the Court shall decide and adjudicate the issues on the given facts and circumstances including the evidences adduced by the respective parties. 7. Rule 243 of the Civil Rules and Orders is in consonance with the provision under Order XXVI Rule 10 of the Code. Under the said provision, the Commissioner has to submit the report in writing and signed by him after completing the commission work and such report shall be an evidence in the suit and form part of the record. The Court may permit any of the parties to examine the Commissioner personally in open Court touching any of the matters referred to in his report or the manner in which the investigation has been done. It does not say that the objection should be taken out in the form of an application so that the Court has to invest time to decide such objection on the basis of the affidavit and the objection put forth by the other side. 8. This Court, therefore, does not find that there is any repugnancy between the Order XXVI Rule 10 and Rule 243 of the Civil Rules and Orders. Both the provisions complement each other and do not supplant. 9. I had an occasion to consider the identical point in case of Abhijit Lahiri vs. Ashok Roy, reported in 2013 (3) Calcutta High Court Notes (Cal) 422, wherein it is held : “11. Sub-rule 1 of Order 26 Rule 10 of the Code is not relevant for the present purposes, as the entire case hinges on Sub-Rule 2 and Sub-Rule 3 thereof. Power to appoint Commissioner is vested upon the Court under Rule 9 of Order 26 of the Code where the Court deems that the local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. Power to appoint Commissioner is vested upon the Court under Rule 9 of Order 26 of the Code where the Court deems that the local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. Rule 10 of Order 26 of the Code deals with the procedure and the examination of the Commissioner in person. 12. The Commissioner’s report is only an evidence in a case and it does not, in any way, bind the Court so as to treat it conclusive. It is like any other evidence in the suit and does not take away the power of the Court to arrive at the different conclusion if there are sufficient evidence available on the record. The report cannot be a sole basis and the foundation of a final decision in this regard to the other evidence available on the record. 13. There is no specific provision provided under the Court for filing or inviting the objections to the report of the local Commissioner as the plain reading of the language given in Sub-rule 2 of Order 10 Rule 26 of the Code bestowed the power upon the Court either suo moto or on an application at the instance of the parties to examine the Commissioner in person in open Court touching any matter referred to him or mentioned in his report or as to his report or as to the manner in which he had made the investigation. 14. The stage at which such objection is to be considered is not indicated in any of the provisions in the Code. The Court, therefore, enjoins certain discretion either to examine the objection, the moment, it is raised or can permit the parties to examine the Commissioner at the trial. Such discretion should be exercised judicially with great caution and circumspection. The acceptance or the rejection of the Commissioner’s report is within the competence of the Court which has a discretion either to reject the Commissioner report or to accept. The Court has further discretion to examine or not to examine the Commissioner but it should be exercised legally and not capriciously. The objection, touching the report or the manner, in which the report is made, should be decided by the Court either at the pre-trial stage or thereafter depending upon the attending circumstances and in the facts of each case. The objection, touching the report or the manner, in which the report is made, should be decided by the Court either at the pre-trial stage or thereafter depending upon the attending circumstances and in the facts of each case. It is entirely within the discretion of the Court to invoke the provisions contained under sub-rule 3 of Rule 10 of Order 26 of the Code to direct the further inquiry, if there is sufficient reasons for dissatisfaction with the proceeding of the Commissioner. The Court cannot lay down the strait jacket formula for considering the objection the moment, it is raised and not subsequent thereto.” 10. Neither Rule 243 of the Civil Rules and Orders nor Order XXVI Rule 10 of the Code provides the stage of such objection, on the other hand it is a discretion of the Court either to exercise discretion at pre-trial or post trial stage and if such discretion is exercised it does not invite interference by the Higher Forum either under Article 227 of the Constitution of India or Section 115 of the Code. 11. In the instant case, the Trial Court have not rejected the objection but have simply postponed the same to be considered at the trial, which cannot be said to be perverse, illegal and/or infirm warranting interference in exercise of powers conferred under Article 227 of the Constitution of India. 12. The revisional application sans substance and the same is hereby dismissed. There shall, however, be no order as to costs.