1993 Supreme(MP) 376

R.C. Lahoti, J.
Padmawati (Smt.) v. Babulal
S.A. No. 18 of 1989 (G); Decided on 30.6.1993*.

Headnote:Civil P.C., 1908 -- O. 26 R. 10 -- report of the commission -- may be discorded on the face of other available evidence on record -- it does not amount to rejection of the report.

       flfoy izfdz;k lafgrk] 1908 & vuq- 26 fu- 10 & deh‘ku dh fjiksVZ & vfHkys[k ij miyC/k vU; lk{; ds eqdkcys vekU; dh tk ldrh gS & ;g fjiksVZ ds vxzg.k dh dksfV esa ugh vkrkA

        On 24.7.1989 this Court admitted the appeal for hearing parties on the following substantial question of law:-

        "Whether the lower appellate Court has erred in excluding commissioners report from evidence when nobody preferred an objection to the report of the Commissioner and the Commission was appointed and executed by parte?"

        Held: I have heard the learned counsel for the parties and carefully perused the judgment of the lower appellate Court. The learned counsel for the appellant has pressed into service the decision of this Court in Bherulal v. Shantabai (1989-2 MPWN 56) and a decision of the Orissa High Court in Debendranath Nandiv. Natha Bhuiyan (AIR 1973 Orissa 240). He has submitted that the report of the Court Commissioner having not been objected to by either party, was evidence in the case and could not have been excluded from consideration. It is also submitted that if at all the report of the Commissioner was excluded from consideration the lower appellate Court ought to have issued a commission afresh and then disposed of the appeal; the appointment of a local Commissioner being necessary in the facts of the case for a just decision thereof.

        The argument of the learned counsel for the appellant though advanced wittingly and forcefully, has to be rejected. The confusion lies between rejection or exclusion of the report of the Commissioner and it is discarding for disbelieving the facts stated in the report of the Commissioner. It would have been different if any of the Courts below would have arrived at a finding that the report of the Commissioner was liable to be rejected or exciuded on account of any infirmity in the manner of execution of commission. That is not the case here. The Courts below have not excluded the report of the Commissioner but have taken into consideration as a piece of evidence while appreciating the entire evidence available on record. The lower appellate Court has stated why the inference drawn by the Commissioner were not acceptable in preference to other evidence, available on record and worthy of more credence. This does not amount to excluding of rejecting the Commissioners report. The rulings relied on by the learned counsel for the appellant do not therefore help him. 1989 (II) MPWN 56 and AIR 1973 Orissa 240 distinguished. Appeal dismissed.