Madras High Court
L. Srinivasan Chettiar vs L. Santhanam Chettiar on 12 April, 1997
Equivalent citations: 1997(2)CTC228, (1997)IIMLJ653
ORDER S.S. Subramani, J.
1. Defendant in O.S.No. 162 of 1980 on the file of Subordinate Judge, Chidambaram, is the revision petitioner.
2. A preliminary decree for partition was passed on 27.3.1986, to partition plaint A and B Schedule properties. As per the preliminary decree, plaintiff was given half share in Items 1 to 14, 18 and 19 in 'A' Schedule, and one half share in 'B' Schedule Item 55 and an iron safe. Pursuant to the preliminary decree, an application was filed for the passing of a final decree. On that, a Commissioner was deputed to measure the properties and to recommend the allotment. The Commissioner filed his report on 21.11.1994. Various objections were raised by both parties.
3. By the impugned order, the lower Court found that the report filed by the Commissioner requires reconsideration, and appointed a new Advocate-Commissioner. Certain directions were also given by the impugned Order. The said order is under challenge in this revision.
4. I do not think that the revision Under Section 115, C.P.C., is maintainable against the impunged Order. Section 75 of the Code of Civil Procedure which deals with incidental proceedings, empowers the Court to issue commission for various purposes. One such purpose is to effect a partition. Order 26, C.P.C. deals with the procedure for issuing Commission. Order 26, Rule 10, C.P.C. deals with the Commissioner's local inspection. Order 26, Rules 13 and 14 deal with 'Commissions to make partitions' under Order 26, Rule 10, C.P.C. The report of the Commissioner is declared as part of the evidence in the case. It further provides that if the Court is not satisfied with the proceedings by the Commissioner, it may direct such further enquiry as it deems fit. As I have said already, Order 26, Rules 9 and 10, C.P.C. deal with 'Commissions for local investigations' Rules 13 and 14, C.P.C. of Order 20, deal with a specific provision for partition. Order 26, Rule 14(2), C.P.C. provides that the Commissioner shall then prepare and sign a report or the 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. (Italics). Sub-rule (3) provides that '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. (Italics).
5. By the impugned order, the Court below has found that the report of the Commissioner is vague, and the same does not give any details. Even the valuation is not correct. The sum and substance of the Order is that the court below was not satisfied with the report. It directed that a fresh Commission be issued, and an advocate was appointed for the said purpose.
6. The reports of the Commissioner are only evidence in this case. Either the Court can say that the evidence is not admissible, or say that it requires more particulars for being accepted in evidence. The court below has only expressed an opinion that the report cannot be treated at present as satisfactory evidence in the case. When the court has expressed such an opinion, it is only a procedural formality, without taking an ultimate decision. By holding that the report is not acceptable or a fresh report is required, the court is not expressing any opinion about the rights of parties, nor is there an adjudication of the rights.
7. In a very recent decision of the Calcutta High Court reported in Amena Bibi and Ors. v. SK. Abdul Haque, 1996 (2) Cal.LT 12, a learned Judge of the Calcutta High Court considered the question whether the Commissioner's report is acceptable. That means, it treated it as a piece of evidence which has a bearing in the adjudication of rights. It was held in that case thus:-
"From the ratio of the above decision, it is plan that the revisional court would be slow and wary while entertaining the objection regarding the acceptance of the Commissioner's report in a revisional application. The Commissioner's report even if accepted by itself does not, however, mean that the parties are precluded from challenging the evidence of the commissioner or assailing the report by examining any other witnesses to counter-affidavit the effect of the report. It had been held in a decision reported in Harihar Misra v. Narhari Setti Sitaramiah and Anr., in the case of "Rule 10 of Order 26 does not make the report of the Commissioner as concluding the question of valuation. On the contrary, the rule gives clear indication that the report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit. When the parties file no objection to the Commissioner's report, the court rightly accepts the report. Its acceptance by itself does not, however, mean that parties are precluded from challenging the evidence of the Commissioner and the witness is examined by him or by giving any other evidence to countermand and the effect of the Commissioner's report."
Thus, from the underlying principle emerging from the above cases, it is manifest that the party objecting to the commissioner's report can lead best possible evidence at the time of hearing to countermand the report even if the same was accepted earlier. The court on taking the comprehensive view can decide the point at issue and arrive at right conclusion. I do not find at this stage any justification to interfere with the findings of the learned Trial Court order accepting the Commissioner's report."
8. In the decision reported in A. Narayani v. Kittan @ Krishnan, 1996 (2) K.L.J.489, it was held thus:-
"When a petition is filed by any of the parties to the suit seeking to set aside the Commissioner's report, or seeking to remit the Commissioner's report and plan, it is always open to the trial court, to consider the said application and 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 thinks fit. Under Order XXVI, Rule 10(3) trial court has got a discretion to order a fresh commission or not. However, the court is not bound to do so in every case where the result of the local investigation is found to be unsatisfactory. Trial Court can decide the case on the evidence. But where the trial court is dissatisfied with the whole proceedings of the Commissioner that it thinks it better to discard the whole record and start afresh, it may do so. Where the court is of opinion, on considering the objections of the parties, if any, that the Commissioner has so misconceived his duties as to render his report valueless, it may wipe out and supersede the first report by a specific order to that effect, and may issue a fresh commission. So also where the parties agree to the appointment of the second commissioner and abide by his report they cannot turn round and say that his report is not evidence under the terms of Sub-rule (2). The acceptance of commission report does not however mean parties are precluded from challenging the evidence of the commissioner or assailing the report by cross-examination of the commissioner or adducing any other evidence to countermand the effect of the report. Under Order XXVI, Rule 10(2) report of the Commissioner together with the evidence, if any recorded by him is legal evidence in the suit. However, the parties are entitled to take objection to the report of the Commissioner and substantiate the same by examining the Commissioner or other witnesses. Rejection of objections to the Commissioner's report does not preclude the court at a later stage either suo motu or at the instance of any of the parties from examining the commissioner nor from considering the report in the light of evidence on record. A commissioner's report is only evidence in the case. It is in no way binding on the court. The court has full power to arrive at its own conclusion even at variance with the report. In fact, the report ought not to be made the sole basis and foundation for the judgment in disregard of other evidence in the case." (Italics supplied).
9. When the court expresses an opinion that the report is not satisfactory, and calls for better evidence, it only says that the court cannot proceed on that evidence which is before court. In fact, learned counsel was also at pains to substantiate the challenges made to the impugned order. He also read before me the entire report. I also feel that the report is not satisfactory and a better verification with a little more details are absolutely necessary. Since the impugned order is not 'case decided', and further , even on merits, the report is not satisfactory piece of evidence, the impunged order is not liable to be interfered with. The Civil Revision petition is, therefore, dismissed. No costs.