Kerala High Court
Francis Assissi vs Sr.Breesiya on 4 December, 2003
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938
RSA.No. 733 of 2004 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN AS 280/1999 of III ADDITIONAL DISTRICT
COURT (ADHOC), THRISSUR DATED 04-12-2003
AGAINST THE ORDER/JUDGMENT IN OS 2295/1988 of PRINCIPAL MUNSIFF
COURT,THRISSUR DATED 20-02-1999
APPELLANT/APPELLANT/PLAINTIFF::
-------------------------------
FRANCIS ASSISSI, S/O.THATTILMANDI JOSEPH,
RESIDING AT ANTHIKKAD VILLAGE, THRISSUR TALUK.
BY ADVS.SRI.T.C.SURESH MENON
SMT.G.GEETHISHA
SMT.M.R.VALSA
RESPONDENTS/RESPONDENTS/DEFENDANTS::
--------------------------------------
1. SR.BREESIYA
MOTHER SUPERIOR, INFANT JESUS CONVENT,,
ARANATTUKARA VILLAGE, THRISSUR TALUK.
2. SR.LISIYA,
ASSISTANT MOTHER SUPERIOR,
INFANT JESUS CONVENT,, ARANATTUKARA VILLAGE,
THRISSUR TALUK.
3. INFANT JESUS CONVENT,
ARANATTUKARA VILLAGE, THRISSUR TALUK,,
REPRESENTED BY ITS MOTHER SUPERIOR.
R,R1 TO R3 BY ADV. SRI.M.GEORGE THOMAS
R,R1 TO R3 BY ADV. SRI.P.VIJAYA BHANU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
al/-
P.R.Ramachandra Menon 'CR'
&
P.Somarajan, JJ.
====================================
R.S.A.No.733 of 2004
====================================
Dated this the 15 thday of December, 2016.
JUDGMENT
P.Somarajan, J.
This Second Regular Appeal is preferred against the decree and judgment of Additional District Court, Thrissur in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in the original suit in O.S. 2295/1988 on the file of the Munsiff Court, Thrissur. The appeal had initially come up before a learned Single Judge of this Court and it was placed before us doubting the legal position laid down by a Division Bench of this Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi [(1985 KLT
144). Earlier, a single bench of this Court in Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed doubt about the legal proposition laid down in the Swami Premananda Bharathi's case but did not opt to refer the issue to a Division Bench. In Hydrose V. Govindankutty, R.S.A.No.733/2004 2 [(1981) KLT 360] M.P.Menon.J. took the view that without setting aside the report submitted by a finger print expert, another finger print expert can be appointed. Another decision drawn in Sivaraman v. Narayanan [(1986) KLT 578] Varghese Kalliyath .J. took the view that the court has jurisdiction to appoint the same Commissioner which he omitted to note in the report already submitted. So the question came up whether it is permissible to have a second report of commission without wiping out the earlier one and doubted the legal preposition laid down in Swami Premananda Bharathi's case (supra). Hence the matter placed before us.
2. Before going into the reference, it is worthful to narrate the factual sequences involved in the case. The suit in O.S. No. 2295/88 on the file of Principal Munsiff, Thrissur, was filed for recovery of possession on the strength of title, mandatory injunction and for damages. There are two items of property scheduled in R.S.A.No.733/2004 3 the plaint, which were originally belonged to Chungath Ouseph, by virtue of sale deed of the year 1954. It was later on purchased by the plaintiff on 23.11.1988 from the son of Chungath Ouseph by name Jose. Item No.1 property is the only access to Item No.2 of plaint schedule. Its eastern end starts from the municipal road lying north-south direction. A gate was installed at the entrance by its previous owner. The property lying on either side of Item No.1 is owned and possessed by the defendant. When they attempted to demolish the gate, it has necessitated the institution of the present suit, by the plaintiffs for recovery of possession, for damages, for permanent prohibitory injunction and mandatory injunction to remove the pipeline drawn through Item No.1 property.
3. The defendant contested the suit alleging that the plaint Item No.1 is the way used by the convent as means of access. The defendant has purchased the properties in the year 1960. The school compound of the R.S.A.No.733/2004 4 defendant is having an extent of 2 acre 91 cents, which is situated on the southern side of convent property. But, the extent of school compound is mistakenly shown in the document. There was a wooden gate in front of their property and it was replaced with an iron gate in the year 1968 by the defendants. A pipeline was drawn across the plaint Item No.1 property. Telephone and electric lines were also drawn through the disputed property. The disputed road is the only way leading to the convent building which faces towards south and the defendants are in exclusive possession and ownership of plaint schedule Item No.1. Even if the plaintiff has any right, title or interest over the property, the same is stood as lost by adverse possession and limitation. Hence, they pressed for dismissal of the suit.
4. An additional written statement was also filed disputing the title of plaintiff over the plaint schedule Item No.1 property. Plaint schedule Item No.1 is not a property used by the plaintiff as means of access. R.S.A.No.733/2004 5 The claim of damage is also disputed. The structures existing in Item No.1 were in existence right from the year 1949.
5. A second additional written statement was also filed disputing the description of Item No.1 property after its amendment. The pipeline was drawn long before the suit and it is known to the plaintiff.
6. The Trial Court dismissed the suit by its judgment dated 20.02.1999 against which appeal in A.S. No.280/1999 was filed before the Additional District Court, Thrissur and by impugned judgment dated 04.12.2003 the appeal was dismissed against which this Regular Second Appeal was preferred.
7. Before going into the impugned judgment and decree, we would like to have an understanding with respect to the actual impact of Order XXVI CPC and the Scheme thereof.
8. Going by Order XXVI, it is clear that its Rules are regulated in accordance with the purpose in R.S.A.No.733/2004 6 which a commission could be issued viz., (1) to examine witnesses. (2) for local investigation (3) for scientific investigation, performance of ministerial act and sale of movable property (4) to examine accounts and (5) to make partitions. Rules 1 to 14 are regulated under different compartments, under Order XXVI, in accordance with its purpose viz., Rules 1 to 8 incorporated for the purpose of examining the witnesses, Rule 9 & 10 for the purpose of local investigations, Rule 10 A, 10B and 10 C for the purpose of commissions for scientific investigation, performance of ministerial act and sale of movable property (inserted by the amendment Act of 104 of 1976 with effect from 1.2.1977), Rules 11 & 12 for examining accounts, and Rules 13 & 14 for making partitions. Rule 15 to 18 B are general provisions applicable to commissions issued for various purposes. Rule 19 to 21 deals with issuance of commission at the instance of foreign tribunals and High Courts.
9. Going by the above said scheme, the R.S.A.No.733/2004 7 legislature has in its wisdom given headings bifurcating Rule 1 to 15 in Order XXVI in accordance with their purposes. The requirements are different which is well evident from a joint reading of the various Rules 1 to 15 especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule 10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are extracted below for reference.
Order XXVI Commissions to examine witnesses
1..........
2..........
3..........
4..........
Rule 4A. Commission for examination of any person resident within the local limits of the jurisdiction of the court.- Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any Suit for the examination, on interrogatories or otherwise, of any person resident within the R.S.A.No.733/2004 8 local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.
5............
6...........
Rule 7. Return of commission with depositions of witnesses.- Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall (subject to the provisions of rule
8) form part of the record of the suit.
Rule 8. When depositions may be read in evidence.- Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless--
(a) the person who gave the evidence is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to attend R.S.A.No.733/2004 9 to be personally examined, or exempted from personal appearance in court, or is a person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
Commissions for local investigations
9.......
10 (1)..........
Rule 10(2)Report and depositions to be evidence in suit--The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner R.S.A.No.733/2004 10 personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
Rule 10(3) Commissioner may be examined in person--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. Commissions for scientific investigation, performance of ministerial act and sale of movable property 10A(1) .............
10A(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
10B(1) .............
10B(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in R.S.A.No.733/2004 11 relation to a Commissioner appointed under rule 9.
10C(1) ...........
10C(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
10C(3)......
Commissions to examine accounts
11.........
12..........
Rule 12(2)Proceedings and report to be evidence--Court may direct further inquiry--The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to be dissatisfied with them, it may direct such further enquiry as it shall think it.
Commissions to make partitions
13..........
14(1).........
Rule 14 (2)The Commissioner shall then prepare and sign a report or the R.S.A.No.733/2004 12 Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. Rule 14(3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
(emphasis supplied )
10. Rule 4A was not in the Act till it was inserted by CPC (Amendment) Act 46 of 1999 with effect from 1.7.2002 enabling and empowering the court to issue a commission in the interest of justice, for expeditious R.S.A.No.733/2004 13 disposal or on any other reason.
11.Incidentally, another question came up for consideration as to the applicability of Rule 8 of Order XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999 with effect from 1.7.2002. Rule 8 empowers the court to issue a commission for examination of person only on satisfying the reason embodied under Clause (a) of Rule
8. By the insertion of Rule 4A, wide discretionary power is invested with the court in the matter of issuance of commission for examination of any person on the ground of "interest of justice or for expeditious disposal or any other reason", by which the restrictions imposed under Rule 8 of Order XXVI CPC are taken away, virtually making Rule 8 redundant. We have also taken note of Rule 7 of Order XXVI wherein the evidence taken shall "subject to the provision of Rule 8" form part of the record of the suit. The expression subject to the provision of Rule 8 " was inserted by the Act of 104 of 1976 with effect from 1.2.1977 prior to the incorporation R.S.A.No.733/2004 14 of Rule 4A by the Act 46 of 1999 with effect from 1.7.2002. Since Rule 8 became redundant it has no application in the matter of Rule 7 of Order XXVI.
12. The expression "shall be read in evidence" incorporated in Rule 4A, the expression "shall not be read as evidence" incorporated in Rule 8, the expression "shall be in evidence in the suit and shall form part of the record" engrafted in sub rule 2 of Rule 10, the expression "shall be in evidence in the suit" as incorporated in sub rule 2 of Rule 12 and the expression "shall confirm or vary or set aside" as incorporated in sub rule 2 of Rule 14 would clearly show that the requirement for admitting the report of the Commissioner either on record or in evidence under Rules 4A, 8, 10(2) and (3), 12 (2) and 14(2) are different. In Rule 14 (2) nothing mentioned whether it will form part of record or evidence. But says that the court can confirm or vary or set aside the report on hearing the objections of the party concerned. Different yardsticks were applied in the R.S.A.No.733/2004 15 matter of commissioner's report as to whether it would form part of evidence or part of record based on the purpose in which the commission could be issued viz., six categories made mentioned above.
13. Further the power of court in dealing with the commissioner's report are also differently dealt in Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2). Rule 8 became redundant by virtue of amendment and incorporation of Rule 4A to Order XXVI. What is mandated in Rule 4A is that the evidence so recorded by the commissioner "shall be read in evidence". So the court is bound to read in evidence what is recorded by commissioner on examination of witnesses. There is no provision for setting aside the deposition recorded by the commissioner or the report submitted by him. It doesn't say anything about whether it would form part of the record or evidence in the suit. Sub rule (3) of Rule 14 says that where the Court confirms or varies the report it shall pass a decree in accordance with the same, but R.S.A.No.733/2004 16 where the Court sets aside the report or reports, it shall either issue a new commission or make such other order as it shall think fit. Going by Sub rule (3) of Rule 14, it is clear that a commission which was issued for making partition either be confirmed or be varied or be set aside as the case may be by the Court and when it is confirmed or varied the Court is bound to pass a decree in accordance with the same but when it is set aside a second commission can be issued for which setting aside of the earlier report is a condition precedent. In short, setting aside of an earlier report of the Commissioner for issuing a second commission mandated only under sub rule 3 of Rule 14 of Order XXVI CPC.
14. There is no provision anywhere under Rule 1 to 8 enabling the Court to examine the Commissioner who prepared the report and recorded the deposition of a witness/witnesses as the case may be, presumably on the reason that there is no scope for setting aside the deposition recorded or the report thereof. If the R.S.A.No.733/2004 17 examination of witnesses is incomplete or a re- examination of the witnesses by recalling him is necessitated after the submission of the first report no doubt a second commission can be issued for that purpose. The question of setting aside earlier report of the commissioner does not arise under Order XXVI Rule 1 to 8, more specifically the commissions which were issued for examination of persons (witnesses) and the report and deposition recorded by him.
15. There is some slight difference in the approach made by the legislature in Rule 10(2) and (3) wherein it is mandated that the report of the commissioner and the evidence taken by him "shall be evidence in the suit and shall form part of the record", but the Court or with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or as to the manner in which he has made the investigation. Rule 10(3) deals with the power R.S.A.No.733/2004 18 of the Court to direct further enquiry when there is any reason to dissatisfy with the proceedings of the Commissioner. Setting aside of a report or cancelling a report of Commissioner is conspicuously absent in sub rule (2) and (3) of Rule 10, but it empowers the Court to direct "such further enquiry" which stands for a second enquiry or a subsequent enquiry necessarily through a second commission.
16. The provisions of Rule 10 is made applicable in relation to a commission appointed under Rule 10A, 10B and 10C which are dealing with the issuance of commission for scientific investigation, performance of ministerial act and sale of movable property by virtue of sub rule 2 attached to 10A, 10B and 10C. So the very same legal position is applicable in the matter of commission issued for scientific investigation, performance of ministerial act and sale of movable property under Rule 10A, 10B and 10C and a second commission is possible without setting aside the R.S.A.No.733/2004 19 earlier one.
17. The very same provision incorporated in Rule 12(2) of Order XXVI, provides the power to direct "such further enquiry" when there is reason to dissatisfy with the report of the commissioner. A second commission is possible without setting aside the earlier one in the matter of examination of accounts through commission.
18. The very similar provision is incorporated in Rule 12(2) also. The authority to set aside commission's report or to vary the commission's report is engrafted only in sub rule (2) of Rule 14 which stands for commission to make partition. On applying a plain reading and strict interpretation to Rule 1 to 14 to Order XXVI, the resultant effect is that a report submitted by the Commissioner can be varied or set aside by the Court only under Rule 14 sub rule (2) of Order XXVI, which stands for commission to make partition and it is a condition precedent for issuing a second commission. R.S.A.No.733/2004 20
19. The general provisions i.e. Rule 15 to 18 (B) of Order XXVI do not say anything about the examination of Commissioner, or issuance of a second commission or the requirement of setting aside of first report.
20. Divergent views were expressed by various High Courts regarding the question whether the earlier report of the Commissioner should be wiped off before issuing a second commission.
21. The Madras High Court condemned the practice of appointing successive Commissioners in Thottama v. C.S. Subramaniyyan (AIR 1922 Madras
219). That decision was rendered in Rule 14 of Order XXVI CPC. But going by the decision, it is clear that the commission was issued not for effecting partition but for making local investigation and to assess the value of improvements effected in the mortgaged property. In that case three successive Commissions were issued for the very same purpose viz; for assessing the value of R.S.A.No.733/2004 21 improvements effected in the mortgaged property. The said practice of issuing commission one after another was condemned and deprecated. In that decision it appears that the mandate under Rule 14 of Order XXVI CPC was wrongly applied.
22. A Division Bench of Madras High Court in Ambi and another v. Kunhikavamma and others [(AIR 1929 Madras 661] considered both the application of Rule 10(3) and Rule 14(3) and discussed in detail, the scope of "further enquiry" in the following lines.
The rule is R. 10(3) and lays down that further enquiry may be ordered when the Court is for any reason dissatisfied with the proceedings of the Commission. It may be noted that there is no provision corresponding to that in R.14 (3) under which the Court may issue a new commission. What is contemplated under R.10(3) obviously is a further enquiry by the Commissioner already appointed by the Court itself. It may be that where the Court is so dissatisfied with the whole proceedings of the commissioner that it thinks it better to discard the whole record and start afresh, R.S.A.No.733/2004 22 such a procedure would not be contrary to the code. That is the line of argument adopted in Thottamma v.
Subramaniayyan................................................. ........................................................................ ...........
Only the decision of the Court that the work had been so badly done that it had to be done over again would avail to validate the issue of a second commission........................................................ ........................................................................ ............
Only if he is of opinion after hearing both sides that the report is wholly useless is it open to him to discard it and issue a fresh commission to cover the same ground, and in that case the report of the first commission is as if it had never been and would not be evidence in the case................................................. He even issued an order to appoint a third commission, whose report no doubt would have been dealt with in the same way, and so on ad infinitum. This procedure, besides being in our view R.S.A.No.733/2004 23 contrary to law, creates considerable embarrassment to us here.
23. The said decision, though doesn't say anything with respect to the requirement to set aside the earlier one before issuing the second one, the practice of issuing commission one after another is deprecated.
24. Yet another Division Bench of same High Court in Kunhi Kutti Ali and another v. Mohammad Haji and others [AIR 1931 Madras 73] took the view that the earlier commission should be wiped out before issuing a second commission. The relevant portion is extracted for reference.
"We have in the first place to remark that the lower Court should not have issued two separate commissions to deal with one and the same subject and to treat the reports of both the commissioners as evidence in the case. The exact circumstances in which he came to issue the second commission do not appear from the record that has been placed before us. But the second commission should not have been issued, unless it was thought that the report of the first commissioner was not satisfactory in which case R.S.A.No.733/2004 24 the earlier commission should have been wiped out altogether and attention should have been paid only to what was reported by the second commissioner. Instead of this, the learned Subordinate Judge has balanced the report of one commissioner against that of the other and has expressed a performance for the views of the first commissioner. In taking this course, he has acted with great impropriety and contrary to what is contemplated by O.26.R.10(3)Civil PC."
25. A Division Bench of Patna High Court in Shib Charan Sahu and others v. Sarda Prasad and another (AIR 1937, Patna 670) took a different view holding that the first commissioner's report cannot be wiped off the record. It is held that when a Court issues a commission but is dissatisfied with the report of the Commissioner, another commission can be issued but the earlier one cannot be wiped of the record. The relevant portion of the judgment is extracted below for reference.
Commission- Court dissatisfied with report of commissioner, can issue another commission- Report of first commissioner however cannot be R.S.A.No.733/2004 25 wiped out of record......................................... When a Court issues a commission. But is dissatisfied with the report of the commissioner it is entitled to issue another commission and also for its report, but the report of the first commissioner cannot be wiped off the record. In those judgments, the Madras High Court was endeavouring to correct a very bad tendency on the part of the Munsifs of the Malabar districts who appeared to have got into the habit of sending out simultaneous commissions to investigate the same issue of fact and then taking all the commissioner's reports into consideration and deciding as between these various reports which of them was preferable; and this habit of sending out commissions whether simultaneous or consecutive had become a nuisance which the Madras High Court very properly desired to check and put an end to. I can find in those judgments no statement of a principle such as is contended for in this appeal. There is nothing in O.26, R.10, Civil P.C to justify such a contention. It is in the power of the Trial Court to send out a second or even a R.S.A.No.733/2004 26 third commission, and when all the materials are before the Court it may at the time of delivering judgment attach very little or no weight to the first commissioner's report but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence.
26. A single bench of the same High Court followed the principle laid down in Shib Charan Sahu's case (supra) in the following lines.
Order XXVI provides that the Commissioner appointed under Rule 9 has to return the evidence recorded by him together with his report in writing signed by him to the Court. Sub rule (2) of R.10 of O.XXVI interalia makes it clear that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Sub rule (3) authorises the Court to direct such further enquiry to be made as it thinks fit in case the Court is, for any reason dissatisfied with the proceedings of the Commissioner. No provision of the Code, however, provides for the Commissioner's report being taken off the record or not being R.S.A.No.733/2004 27 considered as evidence in any circumstances. The value to be attached to the report is however, a different matter. It is obvious that the Court was either not satisfied with the proceedings of the first Commission or merely because of the statements made by the parties on January 16, 1970 the second commission was ultimately issued.
27. It was held by a Single Bench of this High Court in Narayan Guptan v. Madhava Menon (1964 KLT 453) that the issuance of a second Commission without setting aside the earlier one is only an error, or defect or irregularity in the proceedings which does not per se affect the merits of the case.
28. In Moidu v. Lekshmi Amma [(1968) KLT 699] V.R.Krishna Iyer. J. took the view that a second commission can be issued only after formally setting aside the earlier one. The relevant portion of the said decision is extracted below for reference.
If a second commission is to be issued under such circumstances, the first report must be R.S.A.No.733/2004 28 formaly set aside. A conscious irregularity need not be committed at a stage where the decree has not been passed, when it can be set right.............................................................. .......
He rightly relies upon Order xxvi R. 18, Civil Procedure Code, and the ruling reported in Achuthan v. Kunhipathumma (1967 KLT. 326) wherein a Division Bench of this Court has held that it is a principle of natural justice that it is only evidence taken in the presence of a party that can be used against him. For this reason, according to their Lordships, Order XXVI R. 18 CPC. provides for an opportunity being given to the parties to be present before the commissioner in the property at the time of his inspection. Order XXVI R. 18, CPC. enshrining as it does a wholesome principle of natural justice, is treated as imperative. Under Order XXVI R. 18 cpc a direction has to be issued by the Court to the parties before the issue of a commission and this direction should be issued after notice to the parties; at least the commissioner should issue notice to the parties calling upon them to appear in the property on the date he proposes to visit the property for investigation. Unfortunately, R.S.A.No.733/2004 29 obsessed by a sense of emergency, the commissioner has admittedly departed from his obligation under Order XXVI R. 18 CPC. The consequence is that the Court is constrained to direct the second commissioner to make "necessary rectification and additions in the light of the objections raised by the defendants..................................................... .....
Nevertheless, his report has been prepared ex-parte and that is the vice of it. If a second commission is to be issued under such circumstances, the first report must be formally set aside. Of course, the ruling reported in Narayana Guptan v. Madhava Menon (1964 KLT.
453).
In Hydrose v. Govindankutty [(1981 KLT 360], the expression "dissatisfied with the proceedings of the Commissioner" as engrafted in Rule 10 (3) Order XXVI discussed in detail in reference to Rule 12 (2) of Order XXVI and it was held that "sub rule (3) does not specifically provide for wiping out evidence which is already part of the record. It only contemplates a further enquiry and therefore, a further report R.S.A.No.733/2004 30 which will also become evidence and part of the record by virtue of sub rule (2). If the Court is dissatisfied with the proceedings of the first commissioner, it may not attach much probative value to his report in deciding the issue before it. Rule 10(3) does not provide for setting aside a report and issuing a new or second commission. It is not the repository of the court's power to issue a second commission."
29. The very same view was reiterated by another single Bench of this Court in Ummer v. Muhammed [(1983) KLT 258] in the following lines.
The Court can issue a second commission only under Order 26 Rule 10(3) of the Code. As per the above provision, the Court should, for any reason, he dissatisfied with the proceedings of the commissioner already deputed. The dissatisfaction can be before the submission of the report or after that. No question of setting aside the report arises if the Court was dissatisfied about the work of the commissioner and issued a second commission before he submitted the report. Proceedings of the Commissioner cannot but include the report of the R.S.A.No.733/2004 31 commissioner, if a report has been submitted. If the Court is dissatisfied about what the commissioner did, can the report be salvaged simply because the report is not specifically made mention of in rule 10(3). Not only that the Court gets jurisdiction to issue a second commission only if the Court for any reason is dissatisfied with the work of the first commissioner.
Going by the scheme of the relevant provision of the Code, this is not something which is contemplated. Simply because rule 10(3) does not provide for the setting aside of the first commission report, it cannot be said that a second commission can be issued without setting aside the first commission report. If, for example, the Court feels some more details are to be gathered, the Court can depute the same commissioner for the same purpose and in that case, no setting aside of the report already submitted is necessary. Order appointing a second commissioner, without assigning any reasons why the report of the previous commissioner is ignored, is not only contrary to the provisions of O.26 R.10((3) but is to be condemned.
R.S.A.No.733/2004 32
(emphasis supplied) In that decision, the Single Bench of this Court took the view that the court can issue a second commission only under Order XXVI Rule 10(3) CPC. This observation was made without considering the application of Rule 14(3) of Order XXVI CPC.
30. The Culcutta High Court in Chinmaya Saha v. Renuka Halder [ AIR 2016 Cacutta 33 = 2016 KHC 2319] took another view stating that "although rule 10 of Order XXVI does not expressly provide for setting aside of a commissioner's report, the court can do so in exercise of its inherent power."
31. We are in respectful disagreement with the view taken by the High Court of Calcutta simply on the reason that the mandate under Rule 10 says that the report "shall be in evidence in the suit and shall form part of record". So in no event it can be set aside but the probative value of the same can be looked into and R.S.A.No.733/2004 33 assess at the time of hearing of the suit or proceedings. If it is found that there is no probative value attached to the said document, the court need not act upon the document but there is no provision for setting aside the same under Rule 10 of Order XXVI as the mandate included therein says otherwise. It is also well settled that when there is provision to meet a particular situation in the CPC the court is not expected to exercise jurisdiction under Section 151 CPC. A strict interpretation of rule 10 of Order XXVI, would show that there is no scope or occasion for setting aside the report of the commissioner which is "shall be in evidence in the suit and shall form part of the record."
32. In Swami Premananda Bharathi v.
Swami Yogananda Bharathi [(1985 (1) 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 R.S.A.No.733/2004 34 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 Rule 1 to 14 of Order XXVI in accordance with the purpose to be achieved, but had taken note of minor difference in the phraseology in Order XXVI Rule 10 (3) CPC and Order XXVI Rule 12 CPC. As discussed in earlier paragraph Rule 12 deals with examination of accounts or R.S.A.No.733/2004 35 adjustment of accounts through commission. But Rules 10(2) and (3) stand for commission for local investigation. The power of Court to examine the Commissioner personally in open court is engrafted in Rule 10(2) but there is no such power included any where in Rule 11 or 12. But for saying that the report of the Commissioner shall be evidence in the suit. The expression "shall form part of the record" as engrafted in Rule 10 (2) is conspicuously absent in Rule 12 (2). In fact Rule 10 and Rule 12 designed and intended for meeting different situations are having different applications and impact, though the principles laid down therein are one and the same.
34. Neither in Rule 10 nor in Rule 12 the power to set aside the commission report or to wipe out of record, is included. The report submitted under Rule 12, though shall be in evidence in the suit, it will not form part of the record as in the case of Rule 10 wherein it is specifically stated that the report of the Commissioner R.S.A.No.733/2004 36 and the evidence taken by him shall form part of the record. As discussed in earlier paragraphs both Rule 10 and 12 emphasis the need to issue and to direct a further enquiry when the Court has reason to dissatisfy with the proceedings of the Commissioner. Necessarily a further enquiry stands for issuance of a second Commission. Nowhere it is stated in Rule 10 or 12 the requirement of setting aside earlier one or to discard the earlier one. Setting aside of a commission report or varying a commission report, stands provided only in Rule 14(2) which stands for issuance of commission to make partition. The Division Bench did not consider the purpose for which Rule 10 and 12 was enacted and also the conspicuous absence of expression "shall form part of record" in Rule 12 (2) and also absence of provision either in Rule 10 or in Rule 12 for setting aside or varying the commission report. What is applied by the Division Bench in that decision is the public policy to have a speedier, effective and cheaper administration of R.S.A.No.733/2004 37 justice and not on the basis of the scheme of Order XXVI CPC and the rules thereunder. In fact what is held in that decision is that the Court can appoint a second commission for further enquiry only if the Court has reason to dissatisfy with the proceedings and report of the first commissioner for the reasons stated.
35. It is well settled that a judgment has to be read in whole to appreciate what actually is rendered, the ratio/rationale and the principle applied, in order to understand what is actually given by the judgment/ adjudication thereof. There may be so many observations/discussions leading to an inference or in arriving at a conclusion in a judgment. It is not advisable to pick and choose one or two words or sentences and to interpret the same apart from what is actually dealt under the judgment.
36. While interpreting a judgment on the rationale/ratio applied therein, the observations, reasons/discussions made therein in arriving at a R.S.A.No.733/2004 38 conclusion shall be understood not in isolation apart from the conclusion arrived at. The observations must be read in the context in which they appear to have been stated and observation made in the judgment should not be read in isolation apart from the conclusion arrived therein. Further the observation shall not be substituted in place of conclusion arrived at, there cannot be any uniform application of rules governing interpretation of statutes and interpretation of judgment/orders. They are governed by different fields of interpretation.
37. In Union of India and another v. Major Bahadur Singh [(2006) 1 SCC 368] the Apex Court settled the following in the matter of interpretation of judgments.
"Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and R.S.A.No.733/2004 39 provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussions is meant to explain and not to define."
38. Then again in Nair Service Society v. State of Kerala [(2007) 4 SCC 1], it was held by the Apex Court that for construing a judgment, it must be read in its entirety.
39. In Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group and others [(2006) 3 SCC 434] : [AIR 2006 SC 1489], the position stands further reiterated as follows:
"Judgment are required to be read in their entirety. A judgment cannot be read as a statute. Construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein observations were made. Any observations made in a judgment should not be read in isolation and out of context."
40. While applying the above said principle in interpreting the judgment in Swami Premananda R.S.A.No.733/2004 40 Bharathi's case the observation made by the Division Bench by importing application of public policy in order to have a speedy disposal, effective time management and cheaper administration of justice has to be understood in that context. The conclusion arrived at by the Division Bench is 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 commission for further inquiry and that is a condition precedent. The condition precedent is the dissatisfaction of the proceedings and report of the first commission. So, in fact, the position rendered in that decision does not have any inconsistency with the earlier view taken in Hydrose v. Govindankutty [1981 KLT 360] and Ummer v. Muhammed [1983 KLT 258].
41. The question of setting aside of earlier commission report before issuing a second commission would arise only in case of commission issued for effecting partition. In all other cases there is no R.S.A.No.733/2004 41 necessity, requirement or need to set side the earlier report, before issuing a second Commission either for the very same purpose or for some other purposes. No such mandate is included any where in Rule 1 to 13 to Order XXVI. At the same time, we cannot shut our eyes into certain realities which are prevailed in certain part of Kerala in issuing commissions one after another. There are cases of issuing three or four commissions for the very same purpose. Such practice definitely is detrimental to the speedy disposal of the suit and cheaper administration of justice. Both are detrimental to the system and hence has to be deprecated. But at the same time, it does not mean that the court is not empowered to issue one or two or three commissions if the situation warrants so.
42. The restriction of issuing commission one after another has to be understood under the public policy having speedy disposal, time management, cheaper administration of justice and the like. So the legal R.S.A.No.733/2004 42 position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition recorded by the Commissioner or the report submitted thereof under Rule 1 to 8 of Order XXIV CPC which are dealing with issuance of commission for examination of witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of Order XXIV, prohibiting issuance of a second commission when it is found to be necessary, especially when the report is incomplete or the witness examined was recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report submitted by the commissions issued for making local investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have a second commission to conduct further enquiry. The question of setting aside the earlier one does not arise and it is not at all necessary to set aside the earlier one under Rule 9 to 10(3) of Order XXVI CPC. R.S.A.No.733/2004 43
(iv) The legal position is very same in the matter of issuance of commission for scientific investigation, performance of ministerial act and sale of movable property wherein the provisions of Rule 10 of Order XXVI CPC made applicable as if they apply in relation to a commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable in the matter of commission to examine accounts governed by Rule 11 to 12(2) of Order XXVI CPC wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or confirming the report of a commission would arise only in the case of a commission appointed for the purpose of effecting partition under Rule 13 to 14(3) of Order XXVI CPC. It mandates that when the commission report is confirmed or varied, the court is bound to pass a decree in accordance with the same and when it is set aside, to issue another commission for that purpose. So setting aside of earlier commission report is a condition R.S.A.No.733/2004 44 precedent in the matter of commission appointed for the purpose of making partition.
(vii) The issuance of successive commission either under Rules 1 to 8, or under Rules 10 to 13 of Order XXVI, without having dissatisfaction either the report or proceeding of the commissioner earlier appointed, is deprecated.
(viii). The dissatisfaction if any entertained by the court in the proceedings of commissioner or the report thereof under rules 10 to 13 of Order XXVI CPC, is only an initial assessment in nature, shall not be read as substitute for set aside the report or wiping off the same from the record or evidence.
(ix) Going by the phraseology used in various rules viz., 1 to 13 of Order XXVI even a second commission is permissible though it may result in conflicting report. There is no scope for exercising the jurisdiction under Section 151 CPC in respect to the matters covered by rule 1 to 15 of Order XXVI CPC.
R.S.A.No.733/2004 45
(xi) Rule 8 of Order XXVI CPC became redundant by the incorporation of Rule 4A in Order XXVI CPC.
43. On coming into the impugned judgment, the first appellate court proceeded in the matter under a mistaken impression that the second commission can be issued only after setting aside the first one, relying on the decision rendered in Swami Premananda Bharathi's case(supra). Further, the first appellate court committed a serious error in overlooking the settled position that when there is mistake or difference in the survey number, description of boundary will prevail over, the property. Ext.C1(a) is seen prepared correctly identifying and locating item (1) property having an extent of 10 cents in Survey No.164/3. The properties lying on either side belongs to the defendants. The defendants did not have any case that they had obtained title over 10 cents of property comprised in Survey No. 164/3 under any document of title but simply advanced a case that the same will form part of their large extent of R.S.A.No.733/2004 46 property and at the same time they advanced a case that the description and extent as stated in their document of title are not correct. So no much reliance can be given to the case advanced by the defendant that the 10 cents of property comprised in survey No.164/3 will form part of their large extent. No satisfactory evidence much less any evidence adduced in that behalf by the defendant, which was also over looked by the lower court. On the other hand, the document of title produced by the plaintiff and the boundary description entered therein fully and completely tally with Ext.C1 (a) plan in respect of the 10 cents of property comprised in survey No.164/3. The only defect in the case advanced by the plaintiff is that as per their document of title in Ext.A8, the sub division number was wrongly/ mistakenly entered for which a correction deed was executed as Ext.A9. As discussed earlier, even without a correction deed or correcting the sub division number or the survey number if it was found that there is a mistake, crept in R.S.A.No.733/2004 47 the survey number, the court has to look into the boundary description and the boundaries entered in the document and to identify and locate the property based on the boundaries. The said settled principle was overlooked or rather ignored by the first appellate court. Added by the fact that the defendant did not have any consistent case or acceptable version regarding the acquisition of right title or interest over item No.1 property. On the other hand, on either side of item No.1, the property belonging to the defendant situated. No other way is available to the property of plaintiff scheduled in the suit as item No.2.
44. So the material facts which are relevant for consideration in the adjudication of dispute involved in the suit have been not considered either by the trial court or by the appellate court which has resulted in the miscarriage of justice which would attract the interference by this Court and we are doing so, by setting aside the decree and judgment of both the trial R.S.A.No.733/2004 48 court and the first appellate court. The matter is remanded back to the first appellate court to have a fresh consideration of facts and evidence involved in the case in accordance with law in force. We are also constrained to issue direction to the first appellate court to have an earlier disposal of the appeal within a time schedule of three months from the date of receipt of copy of this judgment, as the litigation was started in the year 1988.
No costs. The parties shall appear before the first appellate court on 5.1.2017.
Sd/-
P.R.Ramachandra Menon Judge Sd/-
P.Somarajan Judge al/-
True copy P.S to Judge R.S.A.No.733/2004 49 fair this is copied from the chamber of P.Somarajan(J) as on 19.12.2016