Karnataka High Court
Sri Amarchand vs Sri M Narayanappa on 5 April, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
W.P. NO. 2035 OF 2022(GM-CPC)
BETWEEN
1 . SRI AMARCHAND
S/O PUKRAJ
AGED ABOUT 73 YEARS
2 . SMT. KAMALA DEVI
W/O SRI AMARCHAND
AGED ABOUT 68 YEARS
BOTH ARE R/AT NO.404/94
9TH MAIN ROAD, VIJAYANAGAR
BENGALURU - 560 040
...PETITIONERS
(BY SRI P D SURANA, ADVOCATE)
AND
SRI M NARAYANAPPA
S/O LATE MUNIYAPPA
AGED ABOUT 59 YEARS
R/AT NO.192, JNANABHARATHI ROAD,
NAGARABAVI VILLAGE
NAGARABHAVI
BENGALURU - 560 072
....RESPONDENT
2
(BY SRI K V NARASIMHAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 03.01.2022 MADE ON ORDER ON REPORT OF
COMMISSIONER PRODUCED AT ANNEXURE-J IN
O.S.NO.3794 OF 2011 ON THE FILE OF COURT OF THE XII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU
(CH-27).
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the plaintiffs in Original Suit No.3794 of 2011 on the file of the XI Additional City Civil Judge, Bengaluru, challenging the order dated 03.01.2022.
2. Brief facts are that, the plaintiffs have filed suit seeking relief of permanent injunction, restraining the defendant from interfering with the suit schedule property. Defendant entered appearance and filed written statement. In the meanwhile, the Court Commissioner was appointed by the court to locate and demarcate the suit schedule property. The Court Commissioner has filed report to the trial court. Statement of objection was filed before the trial court in respect of the survey report submitted by the Technical 3 Assistant to the Deputy Commissioner, who was Court Commissioner in the suit. The parties had cross-examined the Court Commissioner with regard to the report and thereafter, the trial Court by order dated 03.01.2022 accepted the Court Commissioner's report. The said order dated 03.01.2022 is impugned in this petition.
3. I have heard Sri P.D.Surana, learned counsel appearing for the petitioners and Sri K.V. Narasimhan, learned counsel appearing for the respondent.
4. Sri P.D.Surana, learned counsel appearing for the petitioners invited the attention of the court to the sketch produced in the writ petition as Annexure-D and argued that the report of the Court Commissioner is contrary to the sketch made available in the petition. He also contended that, the trial Court ought not to have accepted the report of the Court Commissioner which is based on the surmises and conjunctures. He drew the attention of the court to the schedule appended to the suit in Original Suit No.117 of 2005 produced at Annexure- C and contended that Commissioner's 4 report is contrary to the factual aspect of the case and therefore, the Commissioner's report is required to discarded. To support his arguments, he placed reliance on the judgment of the Madras High Court in the case of Vemba Gounder Vs.Poncholai Gounder reported in AIR 1996 Madras 347 and judgment of Orissa High Court in the case of Gopal Behera and others Vs. Lokanath Sahu and others reported in AIR 1991 Orissa 6 and law declared by the Hon'ble Apex Court in the case of Lekh Raj Vs. Muni Lal and others reported in AIR 2001 SC 996 and submitted that a fair opportunity should be given to the plaintiffs to cross-examine the Court Commissioner and without affording such opportunity to the plaintiffs, the trial Court straight away passed the impugned order which is contrary to law. Accordingly, he sought for interference in this Writ Petition.
5. Per contra, Sri K.V. Narasimhan, learned counsel appearing for the respondent sought to justify the impugned order passed by the trial Court and further argued that the 5 trial Court is yet to pass the orders based on the report made available by the Court Commissioner, and therefore, he sought for dismissal of the writ petition.
6. Having heard the learned counsel appearing for the parties, perusal of the writ papers would indicate that plaintiffs have filed a suit seeking permanent injunction in respect of suit schedule property. The Court Commissioner has been appointed by the trial Court to identify and to make local inspection of the suit schedule property. It is also not disputed by the parties that the Court Commissioner has been cross-examined by the plaintiff/petitioners herein. Perusal of the impugned order would indicate that the Court Commissioner has been appointed based on IA.6 filed by the defendant to identify the disputed property with specific contention that alleged claim of plaintiff with regard to property in Sy.No.50/4 (new Sy.No.50/4A) was acquired by BDA by issuing relevant notification under Section 4(1) of Land Acquisition Act. In this regard, I have carefully considered the finding recorded by the trial Court which 6 would substantiate that the Court Commissioner is a DDLR, who was examined as CW1 and objections have been filed to his report by the plaintiffs. An opportunity has been given to the plaintiff/petitioners to cross-examine the DDLR /Commissioner with regard to the report made available by him. In that view of the matter, it is open for the trial Court is to evaluate the report of Court Commissioner at the time of judgment. It also note worthy to say that the trial Court, while delivering the judgment may not accept the report given by the Commissioner or it is open for the trial Court to evaluate the evidence, based on the averments made in the pleadings on record and pass orders in accordance with law. At this juncture, it is relevant to mention the judgment of the Hon'ble Apex Court in the case of Praga Tools Corporation Ltd. vs. Mahboobunnissa Begum, reported in (2001) 6 SCC 238, wherein it is held that ultimately findings have to be recorded by the trial court itself and report of Court Commissioner only be an aid to the trial Court to arrive such finding. It is also note worthy to follow the law declared by the Hon'ble Apex Court in the case of Lekh Raj Vs.Muni lal 7 and others reported in (2001) 2 SCC 762, wherein the Hon'ble Apex Court held that ones the local Commissioner's report was brought on record as part of evidence to show the subsequent events or conditions, then it is incumbent upon the said court to consider the same and pass orders in accordance with law. This court in the case of Vokkaligara Sannappa vs. Vokkaligara Annaiah reported in ILR 1995 KAR 3286, at paragraph 11 held as follows:
"11. In the present case, the question to be considered is whether Ex.D5 which is the Commissioner's Report which had been filed in O.S. No. 65/77 could be relied as piece of admissible evidence without said Commissioner being examined in evidence. The Commissioner had been appointed in O.S.No. 192/75 and after having the visited spot, the Commissioner submitted his Report in the suit O.S.No. 192/1975. It is an undisputed fact that the Commissioner of that case while filing his Report has not been examined in the Trial Court in the present suit to prove the contents of his Report and to state about the accuracy of the Report etc. Question is whether in these circumstances, the Commissioner's Report was admissible as evidence for the purpose of this case. Under Order 26 Rule 10(2), it has been provided that a Report will be piece of evidence only in the case in which the Commissioner was eppointed. Order 26 Rule 10(2) reads as under:-
"Report and depositions to be evidence in suit :- The report of the Commissioner & the evidence taken by him (but not the evidence without the report) shall be evidenced in the suit and shall form part of the record, but the 8 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 mentioned in his report, or as to his report, or as to the manner in which he has made investigation."
The specific use of the expression "shall be evidence in the suit" specifically points out that for the purpose of the suit in which the Commissioner had been appointed and the Commissioner submits the Report in that suit, Commissioner's Report will be evidence. The suit refers to, the specific suit, namely, the suit in which the Commissioner had been appointed and in which Report as given by him not to any other suit, So, that Report could be taken to be the piece of evidence in that case only even without examining the Commissioner. But, it is open to the parties and the Court to examine the Commissioner in that case, as it has evidentiary value and admissible. In any other legal proceedings or suit, it cannot be taken by itself to be a piece of evidence unless the Commissioner has been examined to prove the contents and accuracy of his Report. When I so opine, I find support for my view from the Decision of the Division Bench of the Calcutta High Court in the case of Sarat Chandra Rakhit v. Sarala Bala Ghosh. Their Lordships of the Calcutta High Court observed as under:
"Then the learned vakil has challenged the map and the report of the Commissioner which were admitted by the Munsiff who tried the suit. It is, no doubt, correct that a map and a report of a Commissioner who made a local enquiry can be evidence only in the suit in which he made the enquiry. That was held in the case of Denobundhu Ghose v. Nistarini Dassi. But, in this case, the report and the map were not taken into evidence by themselves as contemplated in the Civil Procedure Code, but they were taken in under the Evidence Act on 9 being proved by the person who made them, that is the Pleader Commissioner who made them was examined in this case and he deposed that the map and the report were made by him and they were then marked as exhibits."
I further find support from the Decision of the Chief Court Oudh, that is, one of predecessors of the present High Court of Uttar Pradesh, in the case of Ibrahim Beg v. Mt. Aziman, Hon'ble Nanavati J., as he then was has been pleased to observe as under:-
"It has been contended on behalf of the applicants that under Order 26, Rule 9, Civil P.C., the Commissioner appointed by a civil Court to make a local inspection and to submit a report is a person who is performing a duty specially enjoined by the law of the Country, and as such his report falls within the purview of Section 35, Evidence Act. In my opinion this contention is not sound. A Commissioner appointed by a Court with special direction to make a particular inquiry into the particular facts of a case is not a person performing "a duty specially enjoined by the law of his country in which such book, register or record is kept." There is no duty enjoined upon a Commissioner by the law of his land to prepare any book, register or record within the meaning of Section 35, Evidence Act, and I am therefore clearly of opinion that the report of the Amin is a private document which, like any other private document, could be proved only by examining the writer of that report as witness in the case."
In the earlier part of this very Judgment, Hon'ble Nanavati, J., has observed that:
"A High Court has, in Second appeal, a right to disturb the findings of fact which are based 10 upon inadmissible evidence, in the present case, I have held that Exs. A-11 and A-12 are inadmissible evidence, and therefore this Court was competent to interfere with the findings of fact of the lower appellate Court based upon such inadmissible evidence."
It may be mentioned here that Exs. A-11 and A-12 were the report and the map and Commissioner's Report and those documents were held to be inadmissible. The learned Counsel for the Petitioner has argued that A-11 and A-12 were admissible under Section 35 of the Evidence Act. In support of his contention, he has relied upon a Ruling reported in I Luck Case 259(1). It is in that context, Hon'ble Justice Nanavati, J., considered the question of admissibility of the Commissioner's Report.
That the Decision of this Court given in M R Chandrashekariah v. Srinivasa, as relied by Counsel for respondents is of no avail and is not applicable to the facts of the present case, as in that case, question related to admissibility of Commissioner's Report filed in that very case where Commissioner was appointed and Order 26 Rule 10(2) C.P.C. did apply and made that Report evidence of facts mentioned in Report for the purpose of that very suit and not any other suit. Thus considered, I find that Ex. P6 was inadmissible piece of evidence and as the finding of question of possession has been recorded on the basis of not only other evidence, but, Ex.D5. The inadmissible evidence as well as the finding are vitiated by the substantial error of law and it is liable to be set aside. No doubt, the Court after looking to the inadmissible evidence, recorded a finding, but, the recording of finding on that question would not suffice until the question of title is decided as to whether the plaintiff has been the exclusive owner as held by the Trial Court or the property jointly belonged to plaintiff/appellant and defendant/respondent as claimed by the defendants and on this question of fact, it was the duty of the lower appellate Court to have recorded a finding. That 11 in these circumstances, it appears reasonable to set aside the Judgment and decree of the lower appellate Court and to remand the case."
Following the law declared by the Hon'ble Apex Court refereed to above and of this court, I have carefully considered the finding recorded by the trial Court, particularly at paragraph 6 of the impugned order, wherein, the trial Court has come to the conclusion that the report of the Court Commissioner is only a piece of evidence and it is to be evaluated like any other evidence at the time of judgment. In that view of the matter, I am of the opinion that there is no perversity or illegality in the impugned order passed by the trial Court which requires interference under Article 227 of Constitution of India. Accordingly, the Writ Petition is dismissed as devoid of merits.
Sd/-
JUDGE SB