Andhra HC (Pre-Telangana)
Kushal Rao vs Shyam Rao And Anr. on 10 October, 1996
Equivalent citations: 1997(1)ALT93
ORDER B.K. Somasekhara, J.
1. Heard on merits. Formally admitting the revision petition.
2. The order of the learned Subordinate Judge, Bodhan, in I.A.No. 62/1994 in O.S.No. 6/1986 dated 13-8-1996 is questioned by the 1st defendant in the suit. The matter arose with this fact matrix:
A preliminary decree was passed in O.S.No. 6/1986 between the parties. Sri K. Dattatreya Rao, Advocate, was appointed as Commissioner by the Court to assess the mesne profits in regard to the suit lands from the year 1984. The Commissioner warrant was entrusted to him in February, 1995. The report was submitted by the Commissioner in February, 1996 reporting that he could not assess the mesne profits from the year 1984 to 1993 as he could not get proper information. However, he was able to assess the mesne profits for the years 1993-94 and 1994-95 only regarding Khariff season. The Commissioner also made certain observations in the report in regard to the existence or otherwise of certain crops like Mango crops in the season. The learned Subordinate Judge pointed out that in spite of the matter being quite old and the Commissioner was entrusted with the work one year back, he did not submit the report in regard to many matters in question on certain reasons which were not satisfactory. The learned Subordinate Judge sustained the objections of the decree-holder that no purpose would be served from the report of the Commissioner and that the services of an experienced advocate are necessary to assess the mesne profits correctly. With such observations, one Sri Sripathi Rao, Advocate, was appointed for the purpose again, directing him to execute the warrant after issuing notices etc.
3. Mr. Vilas V. Afzalpurkar, learned advocate, has challenged the order on several grounds. In the first place, he contended that the reasons for appointment of second commissioner given by the learned Subordinate Judge are not proper or sufficient to appoint the second commissioner; that there is no recording of the finding that the report of the commissioner is unsatisfactory , and finally, that the learned single Judge has not examined the legal implications of appointing the second commissioner by virtue of Order 26 Rule 10 of the Code of Civil Procedure, whereby the question would be whether the report already submitted by the commissioner along with the statements of the witnesses should exist are (sic. or) to be weighed out. As a whole, the learned Advocate contends that the order in revision appointing the second commissioner is totally illegal and on (sic. an) exercise of a jurisdiction in excess of the powers under Order XXVI Rule 10 of the C.P.C.
4. Sri Fazal Yousufuddin, learned advocate for the respondent, has supported the order contending that on the face of the facts, the report of the commissioner is shown to be unsatisfactory as in the first place, an unexplained belatedness in executing the warrant has been there and secondly, the commissioner entrusted with the task has expressed his diffidence to fulfil the task completely and effectively. Furthermore, the learned Subordinate Judge has given plausible reason as to appointment of a second commissioner who has more experience and standing at the Bar.
5. The order of the learned Subordinate Judge suffers from so many j illegalities and infirmities in addition to exercise of the jurisdiction in excess of what is contemplated under Order XXVI Rule 10 of the Code of Civil Procedure (for short, the 'Code'). By virtue of Sub-clause (sic. Sub-rule) (2) of Order XXVI of Rule 10, when the Commissioner submits the report in writing and signed by him along with the evidence taken up by him, it shall be the evidence in the suit and shall form part of the record and the Court or a party, with the permission of the Court, may examine the Commissioner touching any of the matters referred to him or mentioned in the report. If the Court for any reason, is dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it thinks fit, according to the said Sub-clause (sic. Sub-rule). There is no provision under Order XXVI of the Code for appointing more than one Commissioner or to reject the report of the Commissioner and the evidence without any justification. The law in regard to the appointment of more than one Commissioner by virtue of Order XXVI Rule 10 of the Code is no longer res integra and has been settled by precedents, including the precedents of this Court. As a normal rule, there is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the , report of both the Commissioners as evidence in the case, (vide Samudrala Sitaramacharyulu v. Samudrala Ranganayakamma, AIR 1958 A.P. 304; K.S. Ramachar v. K.S. Krishnachar, AIR 1949 Madras 612 ;Kunhikutti Ali v. Muhammad Hazi, AIR 1931 Madras 73 and Chhotu Mauju v. Gurbhajan Singh, . It is only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second Commissioner could be appointed under the provisions of Order XXVI Rule 10 Sub-clause (sic. Sub-rule) (3). If a second Commissioner is appointed either by rejecting the report of the first Commissioner or Without that, the legal effect is that the report of the first Commissioner may be wiped out in law. But, in view of the implications of Order XXVI Rule 10 Sub-clause (sic. Sub-rule) (2) of the Code, such a report and the evidence recorded by the Commissioner would be evidence in that case, Which has to be taken into consideration while deciding the matter in issue by the Court and, therefore, as a routine, if a second commissioner is appointed, it has got serious consequences wrought (sic. fraught) with danger to the ultimate justice. Thus such a procedure of appointing second commissioner or more than one commissioner for the same purpose is said to be improper and illegal, (See page 1880 of 'Mulla on C.P.C, Volume 3 of Fourth Edition and also page 574 of A.I.R. Commentaries on C.P.C., Volume 4 of 9th edition).
6. The reasons given by the learned Subordinate Judge to appoint second commissioner are not convincing. The learned Subordinate Judge opined that the Commissioner who was appointed already is a junior and that his report can be improved by appointing a senior advocate of the Bar, but the same is inconsistent with the appointment of the first commissioner who has already done a part of the work, which is not found to be defective nor rejected. Secondly, if a portion of the commission work was not fulfilled by the commissioner for any reason, it is possible to direct the very same Commissioner to complete the work with further materials and the co-operation of the parties and their advocates. Even assuming that the report of the first commissioner is not complete, the Court could still consider whether the evidence on record through the report of the Commissioner was adequate or inadequate to decide the controversies between the parties in regard to the assessment of mesne profits. Patently, the report of the Commissioner covered the assessment of mesne profits for at least two years. Without examining these implications, the learned Subordinate Judge has landed in error in appointing the second commissioner, which this Court disapproves as inconsistent with the law and in exercise of jurisdiction beyond the scope of law therein. Thus, the order cannot be sustained.
7. In the result, the revision petition is allowed. The matter is remitted back to the learned Subordinate Judge to reconsider whether the same Commissioner can be directed to complete the commission work as required for the purpose or to make use of the very material on record to decide the controversies between the parties without resorting to appoint the second commissioner or to pass a final order after hearing both the sides, and in case he comes to the conclusion that the report of the Commissioner, which is already submitted, should be rejected, the learned Subordinate Judge shall record reasons for so rejecting, in the light of the observations made above. The fact that the case is old is a matter which should be taken into consideration to expeditiously deal with the matter by the learned Subordinate Judge and in any case, not later than two months from the date of communication of a copy of this order. No costs.