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2022 Supreme(Raj) 2953
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Ashok Kumar Gaur, J.
Smt. Mangli Devi W/o Sitaram Saini & Ors. – Appellant
Versus
Rajesh Kumar & Ors. – Respondent
S.B. Civil Writ Petition No. 9938/2018
Decided On : 17-05-2022
Mr.Rahul Kamwar, Adv., for the Appellant; Mr.D.D. Khandelwal, Adv. (Through VC)., for the Respondent
The main legal point established in the judgment is that the purpose of appointing a Commissioner for site inspection is to know the description of the property, and the report is admissible as evidence, with the opportunity for parties to question the manner of investigation.
Headnote:
Commissioner - Appointment of Commissioner for Site Inspection - Order 26 Rule 10 CPC - Summary of Acts and Sections: Order 26 Rule 10 CPC - The court discussed the appointment of a Commissioner for site inspection and the procedure under Order 26 Rule 10 CPC. It highlighted the purpose of the Commissioner, the admissibility of the report as evidence, and the opportunity for parties to question the manner of investigation. The court also referred to the recent direction by the Apex Court in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi & Ors. regarding the appointment of Commissioners by Civil Court/Executing Courts.
Fact of the Case:
The petitioners challenged the appointment of a Commissioner for site inspection by the Court below, arguing that the appointment was made without due application of mind and without assigning any reason.
Finding of the Court:
The Court found that the appointment of the Commissioner for a second inspection was justified based on the hindrance faced during the first inspection, and the purpose of the appointment was to know the description of the property, not to collect evidence.
Issues: The main issue was whether the Court below erred in appointing a Commissioner for a second inspection without due application of mind.
Ratio Decidendi: The Court held that the purpose of appointing a Commissioner is to know the description of the property and not to collect evidence. It also emphasized the admissibility of the report as evidence and the opportunity for parties to question the manner of investigation.
Final Decision: The Court dismissed the writ petitions, finding no force in the petitioners' arguments.
ORDER
1. Heard learned counsel for the parties.
2. The petitioners-defendants have filed S.B. Civil Writ Petition No.9938/2018 challenging the order dated 15.01.2018, whereby, the Court below has appointed Commissioner second time for site inspection. The petitioners filed review application before the Court below challenging the said order dated 15.01.2018 and the Court below, vide order dated 09.02.2021, dismissed the review application and as such, the petitioners have filed S.B. Civil Writ Petition No.7437/2022 challenging the order dated 09.02.2021.
3. With the consent of learned counsel for the parties, both the writ petitions are decided by this common order.
4. Learned counsel for the petitioners-defendants submitted that the plaintiffs have filed suit for cancellation of sale deed, declaration and mandatory injunction.
5. Learned counsel submitted that the petitioners had filed an application before the Court below for appointment of Commissioner to inspect the disputed site and submit site inspection report.
6. Learned counsel for the petitioners submitted that one Advocate was appointed as Commissioner, vide order dated 10.02.2017 and the said Commissioner submitted his site inspection report and same was prepared in presence of both the parties and it was signed by both the parties.
7. Learned counsel for the petitioners submitted that after submission of the aforesaid site inspection report before the Court below, again the plaintiffs filed application on 21.03.2017 stating therein that the said Commissioner while inspecting the site did not see the gate marked as ’kha’ after opening the same, as the defendants had closed the gate by putting a lock kundi and also constructed the bricks wall and as such, prayer was made to seek a direction to the Commissioner to again inspect the disputed site.
8. Learned counsel for the petitioners submitted that by impugned order dated 15.01.2018, application of the plaintiffs’ has been allowed and the Commissioner has again been asked to submit his report on the basis of the facts mentioned in the application, filed by the plaintiffs.
9. Learned counsel for the petitioners submitted that the Court below has allowed the application without due application of mind and without assigning any reason.
10. Learned counsel for the petitioners submitted that there was no occasion to appoint Commissioner for second time, without discarding the earlier report.
11. Learned counsel for the petitioners submitted that the very purpose of appointment of Commissioner is frustrated by the Court below by permitting collection of the evidence in respect of possession of the property.
12. Learned counsel for the petitioners submitted that settled proposition of law in respect of appointment of Commissioner, his role and importance, has altogether been ignored by the Court below and as such, the impugned order passed by the Court below is required to be set aside by this Court.
13. Learned counsel further submitted that the very purpose of appointment of Commissioner by appointing successive Commissioner, will create additional evidence before the Court to take a view of such report being submitted and any lacunae in the pleadings or evidence of the party, should not be permitted to be filled by having such successive report.
14. Learned counsel for the petitioners submitted that Order 26 Rule 10 CPC provides for Procedure of Commissioner and sub-Rule (3) of said Rule states that where the Court is for any reason dissatisfied with the proceedings of the Commissioner then it may direct further inquiry to be made.
15. Learned counsel for the petitioners submitted that in the present case, since the Court has not recorded any dissatisfaction against proceedings conducted by the Commissioner and further did not apply due application of mind, then it could not have directed further inquiry to be made by the Commissioner.
16. Learned counsel submitted that until the first Commissioner’s report is not set aside or declared
