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1992 Supreme(All) 945
IN THE HIGH COURT OF ALLAHABAD
SUDHIR NARAIN, J.
Ram Lakhan and Another - Appellant
Versus
District Judge and Others - Respondent
Civil Miscellaneous Writ Petition No. 20665 of 1990
Decided On : 30-10-1992
Advocate Appeared:
For the Appellant : C.P. Mishra
For the Respondent: K.A. Kayyum
A court has the power to appoint another commissioner to make a local investigation, even though the report of the first commissioner has been confirmed subject to evidence.
Headnote:
CIVIL PROCEDURE CODE - ORDER 26 RULE 9 - APPOINTMENT OF COMMISSIONER - POWER OF COURT TO APPOINT ANOTHER COMMISSIONER - COURT CAN APPOINT ANOTHER COMMISSIONER IF DISSATISFIED WITH THE PROCEEDINGS OF THE FIRST COMMISSIONER OR IF THE REPORT IS INSUFFICIENT OR FURTHER DETAILS ARE REQUIRED.
Fact of the Case:
Petitioners filed a suit for cancellation of sale deed and injunction restraining the defendants from interfering in their possession over certain plots. The trial court appointed an Amin to make a local inspection and submit a report. The Petitioners objected to the report, but the court rejected the objection and confirmed the report subject to evidence. The Petitioners then applied for a fresh survey commission on the basis of settlement maps. The court appointed another Amin, but the defendants challenged this order in revision before the District Judge, who allowed the revision and set aside the order of the trial court.
Finding of the Court:
The court held that the trial court had the power to appoint another commissioner to make a local investigation, even though the report of the first commissioner had been confirmed subject to evidence. The court noted that the report of a commissioner is only a piece of evidence and that the parties have a right to cross-examine the commissioner and adduce evidence either supporting or contradicting the report. The court also noted that in a case where the main dispute is regarding the location of the plots or the nature of the constructions raised on such plots, the oral evidence of the parties may not be sufficient to determine the exact location of the disputed plots and the constructions raised thereon.
Issues: Whether the trial court had the power to appoint another commissioner to make a local investigation, even though the report of the first commissioner had been confirmed subject to evidence.
Ratio Decidendi: The court held that the trial court had the power to appoint another commissioner to make a local investigation, even though the report of the first commissioner had been confirmed subject to evidence. The court noted that the report of a commissioner is only a piece of evidence and that the parties have a right to cross-examine the commissioner and adduce evidence either supporting or contradicting the report. The court also noted that in a case where the main dispute is regarding the location of the plots or the nature of the constructions raised on such plots, the oral evidence of the parties may not be sufficient to determine the exact location of the disputed plots and the constructions raised thereon.
Final Decision: The court allowed the writ petition and quashed the order of the District Judge, Basti dated 14-5-1990.
SUDHIR NARAIN, J.
1. The facts in brief are that the Petitioners filed suit against Respondent nos. 2 to 4 for cancellation of sale deed dated 16-8-1992 and for injunction restraining them from interfering in their possession over plot nos. 196, 197 and 202 and for demolition of the construction raised on these plots. The Defendants contested the suit inter alia on the ground that the disputed constructions have been raised over plot no. 201 and not over plot nos. 196, 197 and 202. The Petitioners applied for issuing of survey commission. The Court appointed Amin to make local inspection and to submit a report. The Amin submitted a report along with the map. The Petitioners filed objection against the report of the Amin. The Defendants did not file any objection against the said report. The trial Court rejected the objection of the Petitioners mainly on the ground that the objection of the Petitioners was not accompanied by any affidavit. The report was confirmed subject to evidence.
2. Subsequently, the Petitioner applied for fresh survey commission on the ground that the plots in dispute be measured on the basis of the settlement maps. The Court invited objection on the said application. The Defendants filed objection stating that the Amin had already submitted a report and map and the same having been confirmed by the Court, it had no jurisdiction to entertain any other application.
3. The Court after hearing the counsel for both the parties again appointed Amin to make local inspection and survey the plots on the basis of settlement map and thereafter submit report. The Defendants aggrieved against the said order, filed revision before the learned District Judge, who allowed the revision and set aside the order passed by the trial Court. The Court was of the opinion that the trial Court had no power to appoint another survey commission as earlier the Amin as appointed, who had already submitted a report and such report was confirmed subject to evidence in the suit. This order has been challenged in this petition.
4. The power to appoint a Commissioner is contained in Order 26 Rule 9 of the Civil Procedure Code. Sub Rule 3 of Rule 10 of the Code empowers the Court to direct further enquiry, in case the Court is dissatisfied with the proceedings of the Commissioner. It reads as under :
Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
5. The dissatisfaction of the Court may be with regard to the procedure adopted by the Commissioner or where the Court finds that the report of the Commissioner is insufficient for determining the controversy involved in the suit or where further details are required for ascertaining certain facts, the Court has power to appoint another Commissioner. This depends upon various factors.
6. In P.B. Kamayan v. Achuta Menon AIR 1932 Mad. 482, the Court deprecated the practice of subordinate Courts in issuing several com-missions in succession and arriving at conclusion by process of selection from the reports of each Commissioner. The Court only cautioned that purpose -of appointing successive Commission should not be to obtain various reports aid thereafter to select on which report it should rely upon.
7. In Mangal Misir and Another Vs. Ramlagan Misir and Others, this Court took the view that unless the Court applies its mind-with regard to the report of first Commissioner it should not appoint another Commissioner. In the present case, however, the Court had applied its mind regarding the first commission and considered the fact that survey of the disputed plots should be done on the basis of the settlement map and for that purpose appointed Amin.
8. In Pearey Lal and Another Vs. Prithi Singh and Others, AIR 1945 All 422, the Court took the view that there was no error of law in appointing more than one Commissioner. The Court observed --
If the report of one commissioner was unsatisfactory
