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2006 Supreme(Cal) 824
High Court Of Calcutta
Before: Arun Kumar Bhattacharya, J.
SANKAR CHANDRA GHOSH - Appellant
Versus
SOVARANI BHOWMICK - Respondent
Civil Revisional Jurisdiction C. O. 4419 Of 2006
Decided On : 12/22/2006
DEBASISH ROY, Dilip Kumar Mondal, Saurau Sen
A commissioner appointed by the court cannot collect evidence beyond the scope of the commission.
Headnote:
Commissioner's Report - Collection of Evidence - The court held that a commissioner appointed by the court to make a report cannot collect evidence beyond the scope of the commission. The court excluded the part of the report dealing with the collection of evidence by the commissioner.
Fact of the Case:
The plaintiff filed a suit for eviction on the ground of reasonable requirement for own use and occupation and requested a local inspection. The defendant objected to the report of the learned Commissioner, claiming that evidence was collected beyond the scope of the commission.
Finding of the Court:
The court found that the commissioner had collected evidence beyond the scope of the commission and ordered the exclusion of that part of the report from consideration.
Issues: The issue was whether the commissioner had overstepped the writ of commission by collecting evidence during the local inspection.
Ratio Decidendi: The court relied on the legal principle that a commissioner appointed by the court cannot collect evidence beyond the scope of the commission, as established in previous case law.
Final Decision: The court allowed the revisional application in part, modified the impugned order by rejecting the part of the report dealing with the collection of evidence by the commissioner, and directed the lower court to exclude that part of the report from consideration.
( 1 ) THE revisional application under Article 227 of the Constitution of India is directed against the order dated 08. 09. 2006 passed by the learned Civil Judge (Jr. Division), Second additional Court at Alipore in T. S. 6/2005 refusing the prayer of the petitioner for rejection of the learned Advocate Commissioner's report.
( 2 ) THE circumstances leading to the above application is that the plaintiff/opposite party instituted T. S. 228/94, subsequently renumbered T. S. 6/2005 on transfer to the Court of learned Civil Judge (Jr. Division), second Additional Court at Alipore against the petitioner for eviction inter alia on- the ground of reasonable requirement for own use and occupation and filed an application under Order 39 Rule 7 read with section 151 CP Code for local inspection for (a) noting down the number and measurement of the rooms and other space in occupation of the plaintiff in the ground floor of the disputed premises save and except areas measured earlier and (b) noting any other local features. The petitioner filed an application under section 151 CP Code for rejection of the learned Commissioner's report on the ground that the learned Commissioner went beyond the writ of commission as she took evidence and noted in her report that on her query the person by name rabindra Chowdhury who was present in the south-eastern side of the disputed premises disclosed that he is a relation of the plaintiff and also a tenant under her and showed her a rent receipt for January, 2006. The learned Court below rejected the prayer by the impugned order holding that it was the duty of the learned Commissioner to note down whatever she noticed and/or observed during the course of commission.
( 3 ) BEING aggrieved by the said order the petitioner has landed in this Court.
( 4 ) MR. Roy, learned advocate for the petitioner, contended that as the learned Commissioner collected evidence by asking the person present who disclosed his relationship with the plaintiff as tenant and showed her a rent receipt, she over-stepped the writ of commission and as such the said portion of report collecting evidence should be expunged.
( 5 ) MR. Mondal, learned advocate for the opposite party, on the other hand, in his usual fairness submitted that though the report is not conclusive, since the learned Commissioner transgressed the writ of commission by collecting evidence by putting some questions to the person present in the south-eastern side of the disputed premises and noted down the same, that part may be excluded from consideration by the learned Court below, but it is no ground for rejection of the entire report which is otherwise valid.
( 6 ) WITH all my concurrence to the above contention of the learned advocate for the opposite party, I may plough a lonely furrow.
( 7 ) UNDER Rule 7 of Order 39 the Court is competent to make an order for the detention, preservation and inspection of any property, which is the subject matter of the suit or as to any question may arise in the ' suit. Under clause (c) of the said Rule 7 the Court is empowered to make an order for all or any of the purposes mentioned in clause (a) and (b) to authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. Here, there was no such authorisation by the Court. In the case of Nkwantahene v. Bechamhene, reported in AIR 1949 PC 291, messengers appointed by the Court to view the land had gone beyond their province by examining witnesses instead of confining themselves to a scrutiny of the locus and the results of their own observation. Repelling the contention of the appellant that the Judgment which was founded in part upon the said report was vitiated, the Court observed that the messengers appear to have discharged their task in a reasonable manner. The parties were present during the investigation and the pl
