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1991 Supreme(Pat) 220
PATNA HIGH COURT
Salyeshwar Roy, Satyabrata Sinha and Ravi Nandan Sahay JJ.
Asifunisa
Versus
Ah Imam
Civil Revision No. 273 of 1990 ;
Decided On : MAY 14, 1991
Headnote:Code of Civil Procedure, 1976, Sec. 75, Order 26 R. 9 & 10, Sec. 151 and General Clauses Act. Sec. 14-(per S. Roy, J -Minority view)-Scope of-Report of pleader Commissioner on writ issued by the court-rule 10(2) profit des 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-there is no provision either in rule 9 or 10 of order XXVI empowering the court to set aside the report and the evidence taken by him - Commissioner can be examined in the case where objection to the report is filed-recourse of sec. 151 can not be taken-Court, if dissatisfied with the report, shall record reasons for the same and order for further inquiry and has no jurisdiction to set aside the report-AIR 1937 Pat 670 & AIR 1961 SC 218, rel. on, AIR 1972 P & H 265, AIR 1982 Ker 49, AIR 1988 Ker 169, AIR 1987 Ker 156, AIR 1985 Ker 83, AIR 1979 Cal 50 & AIR 1991 Ori 6 ref.
(Paras 12, 13, 14, 15, 17, 19 & 20)
(Per S.B. Sinha, J-R.N. Sahay. J. concurring)-report of tile pleader Commissioner-the legislature did not contemplate that the record alone shall form part of the record but report together with the statement taken would form part of the record- a report of the Commissioner like any other report is merely a piece of evidence. even if the same becomes part of the records in terms of the provision-there can not be any doubt that the court for sufficient reasons order the appointment of afresh Commission-rule 10(3) must be held to be applicable only in such cases where the court finds deficiency in the report on any point-interpretation of order 26 rules 9 & 10 is not and can not be depended on the order passed by the Trial Court accepting or rejecting Commissioners report-the court has requisite power to appoint a Second Commission alter setting aside the report or the first commissioner-the court has an inherent power to appoint a Second pleader commissioner in terms of sec. 14 or otherwise-AIR 1937 Pat 670 not approved, AIR 1985 Ker 83, AIR 1988 Ker 169, 1875(23) Suth WR 93 & AIR 1926 pat 462 rel. on, AIR 1982 ker 265, AIR 1982 ker 49, AIR 1987 ker 156, AIR 1991 Ori 6, AIR 1987 ker 83, AIR 1979 Cal 50, AIR 1931 Mad 73, AIR 1932 Mad 482 (1966), 70 CWN 266, 1983 ker 49, 1972 P & H 265, AIR 1979 Cal 50, 1962, AIR 1940 PC 3 AIR 1961 SC 331, AIR SC 527, AIR 1976 SC 331, AIR 1978 Pat 339, AIR 1972 All 552, AIR 1989 Ori 214, AIR 1947 Nag 56, AIR 1976 SC 1776 & (1901) AC 495 ref.
(Paras 39, 40, 45, 57, 59, 73, 75, 94, 105, 108 & 111)
Interpretation of Statutes-provisions in a Statute-Where literal interpretation is possible, the court shall not add or substract any word to or from any statutory provision-recourse to interpretation of a provision of an Act shall be taken recourse to when language is clear, explicit and unambiguous- AIR 1991 SC 101 rel. on, 1990 (2) PLJR ref.
(Paras 42, 43 & 44)
Salyeshwar Roy, J.
1. The defendants are the petitioners. The opposite party, as plalntiff, filed Title Suit No.12 of 1987 for a declaration of his right, title and interest ovtr the suit land. Prayer was also made for a decree for confirmation of possession and mandatory injunction restraining the petitioners from interfering with the peaceful possession of the opposite party.
2. The petitioners contested the suit. From the pleadings of the parties it appeared that there was dispute about the plot of which the suit land formed part. The court below appointel a pleader commissioner. The pleader commissioner was directed to demarcate the suit land and to report whether the suit land formed part of R S. Plot No.1324 or R. S. Plot No.2523 or both. Direction was also given to the pleader commissioner to specify the physical feature of the suit land which might be necessary for the court to come to a conclusion as regard the possession of the parties.
3. The pleader commissioner executed the commission and submitted his report. The opposite party filed objection to the report, inter alla, stating therein that the report was highly partisan in nature and that he had acted beyond the writ. Prayer was made for setting aside the report of the pleader commissioner aad far appointment of another pleader commissioner. The court below heard the parties. By order dated 9-4-1990 after recording reasons it set aside the report of the pleader commissioner and ordered for appointment of another pleader commissioner, This has been impugned in this civil revision application.
4. In was listed before a learned Single Judge who, however, observed that the matter should be heard by a Division Bench. The Division Bench was of the opinion that as on same points the judgment in this case may not be in conformity with the judgment of the Division Bench in Shib Charan sahu V/s. Sarda Prasad and others, AIR 1937 Patna 670, this case be heard by a larger Bench. This is how the matter came before a Full Bench.
5. The only point for determination in this case was, before directing further inquiry whether the court has jurisdiction to set aside the report of the pleader commissioner.
6. The power of Court to issue commissions is provided in Sec.75 of the Code of Civil Procedure (the Code), which may be exercised subject to such conditions and limitations as may be prescribed. It may be noticed that originally the power of Court to issue commission was :
(a) to examine any person ;. (b) to make a local investigation ; (c) to examine or adjust accounts ; (d) to make a partition. By the Amendment Act of 1976 Court has been given power to issue commission: (e) to hold a scientific, technical or expert investigation ; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; or (g) to perform any ministerial act.
It will be noticed that power of the Court to;issue commission is subject to such conditions and limitations as may be prescribed. The conditions and limitations are prescribed in Order XXVI of the Code. The main heading of Order XXVI is "commissions" and these are divided in number of sub-headings, Rules 1 to 8 are under the heading commissions to examine witnesses ;rules 9 and 10 are under the heading commissions for local investigations; Rule 10-A is under the heading Commission for scientific investigation ; Rule 10-B is under the heading Commission for performance of a ministerial act ; Rule 10-C is under the heading Commission for the sale of movable property ; Rules 11 and 12 are under the heading Commissions to examine accounts : Rules 13 and 14 are under the heading Commissions to make partitions. Other rules are also there in that Order under the heading general Provision. I am not noticing the same as those are not necessary to be noticed in this case.
7. It will be seen that for all seven clauses mentioned in Sec.75, provision has been ma
