Point of Law: Sub-rule(3) to Rule 10 empowers court to exercise its jurisdiction in appropriate cases to call for a fresh report by deputing another Commissioner.

JUDGMENT :

Against Ext.P7 order, the 2nd defendant came up. It is an order passed by the trial court refusing to set aside the report of the Commissioner submitted under Rule 10 of Order XXVI C.P.C. based on the legal position settled by a Division Bench of this Court in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041).

2. The question came up primarily is regarding the permissibility of the court to set aside or remit back a Commissioner's report submitted under Rule 9 or 10 of Order XXVI C.P.C.. The decision rendered by a Division Bench of this Court on an earlier point of time in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) and subsequent decisions of a Single Bench of this Court in Yudathadevus v. Joseph (2021(5) KHC 668) and a coequal Bench of this Court in Laly Joseph v. Francis (2023 (2) KLT 516) were brought to the notice of this Court. It appears that the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (AIR 2005 SC 752) and a subsequent three Judge Bench of the Apex Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86) was not followed in the abovesaid two subsequent decisions and even the matter was not referred to a larger Bench.

3. The scope and ambit of Order XXVI C.P.C. was discussed in detail by the Division Bench of this Court in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) and laid down the legal position in reference to the legal position covered by Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144), Chinmaya Saha v. Renuka Halder (AIR 2016 Cal.33 = 2016 KHC 2319) Dr.Subramonian v. K.S.E.B. (1987 (1) KLT 355), Thottama v. C.S. Subramaniyyan (AIR 1922 Mad. 219), Shib Charan Sahu & others v. Sarda Prasad & another (AIR 1937 Pat. 670), Union of India and another v. Major Bahadur Singh ((2006) 1 SCC 368), Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]. The legal position laid down by an earlier Division Bench in Swami Premananda Bharathi's case (supra) was explained and distinguished by the Division Bench in Francis Assissi's case (supra) by relying on the legal position regarding interpretation of judgment laid down by the Apex Court in Union of India and another v. Major Bahadur Singh [(2006) 1 SCC 368], Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]. Paragraphs 32 to 40 of the said judgment (Francis Assissi's case) are extracted below for reference:

“32. In Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) a Division Bench of this Court held as follows: “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. The proceedings in the court below could be expedited without waste of time and money. We are of the view, that only if the court has reason to be dissatisfied with the proceedings and report of the first commissioner for reasons stated, it can appoint a second commissioner for further inquiry. This is a condition precedent. The provision contained in Order XXVI Rule 12 C.P.C is “vital”. Strict adherence alone will facilitate speedier, effective and cheaper administration of justice. Therefore, the appointment of the second commissioner and the reports filed by him without setting aside the first commissioner’s report is wholly illegal and without jurisdiction”.

33. The said decision was rendered after referring the above said decisions but did not go into the question of different treatment given to R.1 to 14 of O.XXVI in accordance with the purpose to be achieved, but had taken note of minor