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2020 DIGILAW 617 (KER)

Thankamani W/o Thankavelu v. Vasanthi W/o Vasu

2020-07-21

B.SUDHEENDRA KUMAR

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JUDGMENT : B. SUDHEENDRA KUMAR, J. 1. The petitioner is the plaintiff in O.S. No. 4756 of 2013 on the files of the court below. The petitioner filed I.A. No. 3416 of 2017 before the court below Praying for remitting the Commission Report and sketch. The court below as per Ext.P5 order dismissed the said application. The petitioner filed I.A. No. 13209 of 2017 for reviewing the said order. The court below as per Ext.P7 order, dismissed the said review petition, stating that there is no error apparent on the face of the records to review order dated 24.07.2017 in I.A. No. 3416 of 2017. 2. Service is complete. However, there is no appearance for the respondents. Since there is no appearance for the respondents, considering the importance of the question involved in this case, this court requested the learned Senior Government Pleader Sri. Johnson M.I. to assist this court. 3. I have heard the learned Counsel for the petitioner and also the learned Senior Government Pleader, Sri. Johnson M.I. 4. The contention of the petitioner is that even though the properties were measured on 17.08.2006 by the Commissioner with the assistance of the surveyor, the properties were not identified with reference to the documents on that day, as the old survey records were not available at that time. Thereafter, without conducting any inspection, the Commissioner had filed Ext.P3 report and sketch. 5. The respondents would contend that the Commissioner had identified the properties with reference to the documents in question, i.e. Document No. 5362/99 and Document No. 816/2001 and hence there is no need to set aside the commission report and the sketch. 6. The court below observed that the Commissioner had complied with the direction of the court to inspect and identify the properties with reference to the survey records and title documents, after giving notice to both sides. The court below further observed that the petitioner had no case that identification of the properties by the Commissioner was not correct. The court below also observed that the claim of the petitioner over the pathway, which is commonly set apart to both sides, has to be established by the petitioner in the trial by independent evidence. It was also observed by the court below that there was no prayer to measure the properties with reference to the old survey numbers. The court below also observed that the claim of the petitioner over the pathway, which is commonly set apart to both sides, has to be established by the petitioner in the trial by independent evidence. It was also observed by the court below that there was no prayer to measure the properties with reference to the old survey numbers. After observing so, the court below dismissed the application as per Ext.P5 order. The Review Petition filed by the petitioner was also dismissed by the court below as per Ext.P7 order. 7. In the course of a civil suit, by way of incidental proceedings, the Court can issue a Commission, inter-alia, for making local inspection, as per section 75 of the Code of Civil procedure (for short the ‘CPC’). The procedure in relation to such Commission for local inspection is specified in Order 26 Rule 9 CPC, which is extracted hereunder:- “9. Commissions to make local investigation - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 8. The opening line of Order 26 Rule 9 CPC would make it clear that the Commission can be appointed for local inspection when the court thinks it necessary. The very wording is local investigation and the purpose of local investigation is to elucidate any matter in dispute, which itself indicates permissibility of collection of evidence, in respect of matters which cannot be effectively proved, like measurement, demarcation, identity of the property, the physical features, etc, by oral evidence. Therefore, the Commission Report and plan have great significance in resolving the factual dispute in a civil case and hence, Order 26 Rule 9 CPC enables the Court to direct the Commissioner to make such investigation as may be necessary and to report the matter to the court. 9. Therefore, the Commission Report and plan have great significance in resolving the factual dispute in a civil case and hence, Order 26 Rule 9 CPC enables the Court to direct the Commissioner to make such investigation as may be necessary and to report the matter to the court. 9. The Division Bench of this Court in State vs. Kodakkat Pocker and Others, 1987 (1) KLT 714 : 1987 KHC 211, held in Paragraph 8 thus:- “Order 26 Rule 9 CPC enables the Court to issue commission for local inspection whenever it finds that it is necessary for deciding any matter in dispute. The object of deputing a commissioner for local inspection is to gather evidence which from its peculiar nature can best be had from the spot itself. The evidence collected and reported by the Commissioner will enable the court to properly and correctly analyse it. Commission report will be helpful to clear or explain any point which left doubtful in evidence on record. Order 26 Rule 10(3) CPC enables the Court, if for any reason it is dissatisfied with the proceedings of the Commissioner, to make further enquiry as it shall think fit. Under the sub-rule, it is always open to the Court to analyse the commission report and to call for fresh report if it is found that the report and truth are poles apart. The Court has necessarily to consider the correctness or falsity of the commission report on the basis of materials and data available before it. Merely because one of the parties did not file objection to the commission report it cannot be said that the court is powerless to deal with it in a case coming under Sub-Rule (3).” 10. This Court in Retnamma and Others vs. Mehaboob and Others, 2013 (2) KLT 648 : 2013 (2) KHC 670 , held in paragraph 58 thus: “In short, the Court shall confirm that commissioner has elucidated all relevant facts which will help the Court to take a right decision in the case. In the light of the provision contained in Order 26 Rule 10(3) CPC, the Court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. In the light of the provision contained in Order 26 Rule 10(3) CPC, the Court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. Order 26 Rule 10(3) CPC lays down that where the Court is dissatisfied with the proceedings of the Commissioner, for any reason, it may direct the commissioner to make such further inquiry as it thinks fit.” The Court in Retnamma (supra) further held in paragraph 59 thus: “If, on a perusal of the report, the Court is satisfied that there is any failure or omission on the part of the commissioner in eliciting the necessary details or if the Court doubts the correctness of the details reported by the commissioner or if the Court finds that the report lacks clarity, the Court has to direct the commissioner to make such further inquiry, as it may think fit. This may be done by the Court either suo motu or at request by either of the parties.” 11. The legal position discussed above would make it clear that the commission can be appointed for local inspection when the court thinks that the local inspection by the commissioner is necessary for deciding any matter in dispute. The object of deputing the Commissioner for local inspection is to gather evidence like identity of the property or its physical features, which from its peculiar nature can best be collected only from the spot. The evidence collected and reported by the Commissioner will enable the court to properly and correctly decide the matter in dispute. The commission report will be helpful to clear or explain any point which is left doubtful in the evidence on record. It is always open to the court to analyse the commission report and to call for fresh report if it is found that the report and truth are poles apart. It is also necessary that the court must consider the correctness or falsity of the commission report on the basis of the materials and data available before it. The Court shall also ensure that the Commissioner has elucidated all relevant facts which will help the Court to take a right decision in the case. It is also necessary that the court must consider the correctness or falsity of the commission report on the basis of the materials and data available before it. The Court shall also ensure that the Commissioner has elucidated all relevant facts which will help the Court to take a right decision in the case. In the light of the provisions contained in Order 26 Rule 10 (3) CPC, the Court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not. Order 26 Rule 10(3) CPC lays down that where the Court is dissatisfied with the proceedings of the Commissioner for any reason, it may direct such further enquiry to be made as it thinks fit. Therefore, if the Court is satisfied on a perusal of the report that there is any failure or omission on the part of the Commissioner in eliciting the necessary details or if the court doubts the correctness of the details reported by the Commissioner or if the Court finds that the report lacks clarity, the Court has to direct to make such further enquiry as it thinks fit. It is clear from the provisions of Order 26 Rule 9 CPC that if and only if the Court is satisfied that certain matters which are relevant for determining the issue in the suit can be obtained only by the local inspection by a Commissioner, the Court will issue a Commission. Therefore, it is incumbent upon the Court to ensure that the Commission Report mentions the details necessary to elucidate the issue in dispute, for which the Commission was appointed, irrespective of whether the parties have filed any objection or not to the Commission Report. 12. Now coming to the case on hand, it appears that the court below observed that there was no prayer to measure the properties with reference to the old survey numbers. The prayer in the application is to measure the properties with reference to title documents. The title documents contain only the old survey numbers. Therefore, it cannot be said that the petitioner did not make any request to measure the properties with reference to old survey number. 13. The court below also observed that the properties were identified by the Commissioner with reference to the survey records and title documents. The title documents contain only the old survey numbers. Therefore, it cannot be said that the petitioner did not make any request to measure the properties with reference to old survey number. 13. The court below also observed that the properties were identified by the Commissioner with reference to the survey records and title documents. However, it appears that the properties were not identified by the Commissioners as required by the court. It is always incumbent upon the Commissioner to go through the plaint and the written statement, if any, before inspecting the property. The perusal of the plaint and the written statement, if any, will help the Commissioner to learn about the dispute involved in the case, which in turn will enable the Commissioner to understand the purpose for which the Commissioner is deputed for local inspection. If the Commissioner understands the purpose for which he is deputed before he visits the property, he will be able to make an effective local inspection, which in turn will, no doubt, help the Commissioner to file commission report to the satisfaction of the court. 14. In this case, the first prayer in the suit is to measure and demarcate ‘A’ and ‘B’ schedule properties and to fix the eastern boundary of ‘A’ schedule property. The second prayer in the suit is to declare the right of the petitioner over ‘C’ schedule pathway. A sketch produced by the Village Officer was submitted by the Commissioner before the court below along with Ext.P3 commission report. It appears that the Commissioner in this case did not go through the plaint and the written statement before conducting the local inspection. Therefore, the Commissioner could not understand the purpose for which he was deputed for the local inspection. That might be the reason why the Commissioner was not able to file report as required in this case. It is to be noted that ‘A’ and ‘B’ schedule properties cannot be identified from the sketch appended to Ext. P3 report, as the said sketch does not contain even the boundaries of ‘A’ and ‘B’ schedule properties. The above said sketch also does not mention anything about ‘C’ schedule pathway. Thus it appears that the Commissioner did not even identify and measure ‘C’ schedule pathway. P3 report, as the said sketch does not contain even the boundaries of ‘A’ and ‘B’ schedule properties. The above said sketch also does not mention anything about ‘C’ schedule pathway. Thus it appears that the Commissioner did not even identify and measure ‘C’ schedule pathway. In view of the above, no effective and executable decree can be passed on the strength of the sketch appended to the commission report. The court below also casually and mechanically accepted Ext.P3 commission report and the sketch submitted by the Commissioner, without even ascertaining as to whether the said report and the sketch were sufficient or not to elucidate the matter in dispute in this case, for which the Commissioner was deputed. Having gone through the relevant inputs, this Court has little doubt that the court below would not have accepted the above commission report and the sketch if the court below had devoted a few minutes to understand the controversy involved in this case and the purpose for which the local inspection was necessitated. 15. Having gone through Ext.P3 Commission Report and the sketch, I am of the view that Ext.P3 Commission report and the sketch are not at all sufficient to resolve the dispute involved in this case. No effective and executable decree can be passed with the aid of Ext. P3 report and the sketch. This being the situation, Exts.P5 and P7 orders cannot be sustained and consequently, I set aside the same. 16. Before concluding, l may add the following lines. It is painful to note that despite the above mentioned judgments and the provisions of law precisely on the point, the learned Munsiff did not incline to ensure that the commission report contained all the details necessary to elucidate the matter in dispute, for which the Commissioner was appointed. It appears that the learned Munsiff had lost sight of the purpose and scope of the provisions of Order 26 Rule 9 CPC and Order 26 Rule 10 (3) CPC. It further appears that the learned Munsiff had also omitted to note the purpose for which the Commission was issued. It should have been noted by the learned Munsiff that no executable decree could be passed on the strength of the sketch appended to Ext. P3 commission report. It is also painful to note that this is not an isolated instance. It should have been noted by the learned Munsiff that no executable decree could be passed on the strength of the sketch appended to Ext. P3 commission report. It is also painful to note that this is not an isolated instance. Sitting in this jurisdiction and evaluating the orders and judgments of various judicial officers in the subordinate judiciary, it appears that even when there are judgments precisely on the point, many judicial officers commit mistakes, which are basic and fundamental in nature. That may be a case where either the judicial officers were not aware of the binding precedents or that they had gone wrong in applying the precedents which were well known to them. I am persuaded to write something in this regard about the Kerala Judicial Academy, which has a pivotal role in moulding the next generation judges, where they have the opportunity to train them for a continuous period of one year. The periodical evaluation of the judgments and orders of the judicial officers, more particularly in respect of the officers who have entered in to the service recently, is sine qua non. The errors, particularly the errors as regards the approach of the judicial officers to the fact situation and the application of a judicial precedent, have to be given emphasis. The very apparent, conspicuous mistakes have to be corrected at the beginning stage of the career, possibly within three years of the judicial officer entering into the service. Any failure in this regard may erode the very trust the public had in the system, which will be not merely ruinous to the judicial system of the Country but will also be an ingratitude being shown to our forefathers who took tiring efforts to build the confidence in the system. The duty of the Judicial Academy is, no doubt, an onerous one, but the same is of alarming significance since the future of the judiciary and the edifice of the judicial trust mainly depend upon the performance of the subordinate judiciary, with which wing the people have direct contact. 17. Of late, it is also learnt that the practice of supplying journals, particularly the part volumes, have been stopped on the premise that the journals are supplied online. I am unable to agree with the above course of action. 17. Of late, it is also learnt that the practice of supplying journals, particularly the part volumes, have been stopped on the premise that the journals are supplied online. I am unable to agree with the above course of action. Reading journals is an altogether different experience, where various judgments reported in the particular part of the journals, are being read as a whole, which would give awareness to the judicial officers with regard to the latest precedents on various subjects, whereas the availability of the journals online would only enable the officer to search on a particular legal position, as and when the necessity comes. The same purpose was being served by virtue of the journals in part volumes ever-since the history of the High Court of Kerala. The question as to whether the same purpose will be served or not by online journals, is a matter to be thought of seriously. 18. I hope that the above comment will be taken up in the right spirit and the Kerala Judicial Academy will do the needful to set right the anomalies, if any, in imparting the training. 19. In the result, this Original Petition stands allowed, setting aside Exts.P5 and P7 orders passed by the court below and the court below is directed to pass order afresh on I.A. No. 3416 of 2017, in accordance with law and in the light of the observations in this judgment. 20. I make it clear that no observation in this judgment shall be construed as adverse remarks against the judicial officer or the Advocate Commissioner concerned, as the said observations were made only for the purpose of disposing of this original petition. 21. The Registrar (Subordinate Judiciary) will transmit a copy of this judgment to the Director of the Kerala Judicial Academy for the needful, in accordance with law.