Punjab-Haryana High Court
Bhupinder Kishore vs Fateh Singh & Ors on 23 December, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2015.01.06 11:55
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.2376 of 2011 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2376 of 2011 (O&M)
Date of decision:23.12.2014
Bhupinder Kishore ...Petitioner
Versus
Fateh Singh Yadav and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Avnish Mittal, Advocate,
for the petitioner.
Mr. Pankaj Jain, Advocate,
for proforma respondents no.5 to 11,
LR No.iii of respondent no.1 and LR No.ii of respondent no.2.
Mr. Gaurav Sethi, Advocate,
for respondent no.26.
*****
RAKESH KUMAR JAIN, J.
This petition is to challenge the order dated 24.03.2011, accepting the application filed by respondents no.1 and 2, to disallow the examination of the expert of the petitioner.
In short, a preliminary decree was passed in a partition suit and for the preparation of the final decree, the Court appointed Shri Sudhir Mohan Mittal as Local Commissioner to demarcate the share of the parties by metes and bounds. The Local Commissioner prepared his report on 18.01.2010 to which the petitioner filed his objection on 18.03.2010, reply to the objection was filed by the decree-holder and the learned Court below, VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [2] ***** vide its order dated 14.08.2011, framed the issues to the following effect:-
"1. Whether the report of the local commissioner is liable to be set aside on the grounds of objections of the applicant/objector/JD?OPA.
2. Whether the objections are not maintainable?OPR.
3. Relief."
After the issues were framed, the case was posted for evidence of the objector who was also asked to file PF/DM/List of witnesses, if any, within 7 days with the condition that no assistance of the Court shall be provided in future if he fails to comply with the order. The petitioner, in order to lead evidence, engaged Shri Anil Malik, an expert, to prepare his report regarding the value of the property etc. and submitted it in the Court but the respondents-decree holder filed an application under Section 151 CPC for disallowing the examination of the expert produced by the petitioner. The petitioner contested the application by filing a reply pleading therein that since issues have already been framed and opportunity has been given to lead evidence, therefore, he has a legal right to lead evidence. However, the trial Court, vide its impugned order dated 24.03.2011, allowed the application of the respondents-decree holder and disallowed the examination of the expert of the petitioner in his evidence.
Learned counsel for the petitioner has argued that once the issues have been framed, more particularly to the effect as to whether the report of the Local Commissioner is liable to be set aside on the grounds mentioned in the objection and opportunity was granted to the petitioner to VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [3] ***** lead evidence in this regard by filing PF/DM/List of witnesses, the report of his expert, produced in controversion to the report of the Local Commissioner appointed by the Court, could not have been disallowed by the learned Court below. In this regard, he has relied upon two judgments of this Court in the case of National Institute of Sports v. Preminder Singh & others, 1982 CLJ (C&Cr) 677 and Chander Parkash Malhotra v. V.P. Malhotra, 1991(1) PLR 606 to contend that once the objections have been raised, it cannot be summarily rejected by the Court without affording an opportunity to substantiate the objections.
On the other hand, learned counsel for the respondents-decree holder has argued that Order 26 Rule 14(2) of CPC does not provide for any kind of trial, as claimed by the judgment-debtor in their reply and the purpose of framing of issues on the objection of the judgment debtor was only to grant him opportunity to point out any illegality in its report, but no opportunity was apparently granted to bring a report of his own expert to the contrary. It is also alleged that the Local Commissioner has been examined and cross-examined by the objector and his expert witnesses on various issues and also on the aspect of his report, therefore, he cannot be allowed to examine any of their own witness. He has also relied upon a Division Bench judgment of the Lahore High Court in the case of Nasir Ahmal and another v. Sarfaraz-ur-Rahman Khan and Ors., 1935 AIR (Lah) 501.
I have heard learned counsel for the parties and examined the record with their able assistance.
The facts of the case are not much in dispute as there is a VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [4] ***** decree of partition in favour of respondent no.1 who had applied for final decree for which the Court had appointed Sudhir Mohan Mittal as a Local Commissioner to demarcate the property by metes and bounds to give effect to the decree of partition. He has submitted his report against which objection has been filed and has also been examined and cross-examined not only by the petitioner but also by his expert witness on the report submitted by him. The learned Trial Court has allowed the application of the decree-holder on the ground that there is no procedure provided in the Order 26 Rule 14(2) CPC for allowing the objector to lead evidence.
In order to appreciate this argument, it would be relevant to refer to Order 26 Rules 13 & 14 of the CPC, which reads thus:-
"13. Commission to make partition of immovable property. -- Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such a person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14. Procedure of Commissioner.-- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [5] ***** value of the shares.
(2) 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 report 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. (3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varies; 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."
According to Order 26 Rule 13 CPC, when a preliminary decree for partition is passed, the Court may issue a commission to such a person as it thinks fit to make the partition or separate the shares according to the rights as declared in such decree. So the discretion lies with the Court to select a person as a commission who would make the partition to separate the shares of the parties determined in the decree. The choice of the learned Court below fell on Shri Sudhir Mohan Mittal in this regard to which there is no dispute between the parties. The Local Commissioner submitted his VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [6] ***** report and the judgment debtor filed the objection to the report submitted by the Local Commissioner in terms of Order 26 Rule 14(2) CPC before its confirmation by the Court. In this process, the learned Trial Court passed the following order on 14.08.2011:-
"It has been brought to my knowledge that the JD Bhupinder Kishore had filed objections to the report of Local Commissioner on dated 20.03.2010 and reply of the same was also filed by the respondent/DH on dated 27.03.2010 but inadvertently the application was fixed for hearing on passing of final decree. The above said mistake is rectified accordingly.
Since the JD/objector has raised some serious objections regarding the report of the local commissioner, therefore, the interest of justice requires that before deciding the application for final decree on the basis of the said report of local commissioner dated 22.01.2010, the objections should be decided after hearing the parties and after going through their evidence. In view of the mandatory provisions of Order 26 Rule 14 CPC and in order to determine the veracity of the objections, the following issues are framed:-
1. Whether the report of the local commissioner is liable to be set aside on the grounds of objections of the applicant/objector/JD?OPA.VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [7]
*****
2. Whether the objections are not maintainable?OPR.
3. Relief.
No other issues arises, pressed for or is framed.
Adjourned to 21.018.2010 for evidence of the objector/applicant/JD. PF/DM/List of witnesses, if any, be filed within seven days from today, failing which no assistance of the court shall be provided in future." As a matter of fact, only issue no.1 was material wherein the Court wanted to find out whether the report of the Local Commissioner can be set aside on the objections taken by the judgment debtor and put the burden upon him to prove it. The Local Commissioner was examined in support of his report and as mentioned in the impugned order, he was cross- examined by the petitioner and his expert witnesses on various issues on the aspect of his report.
The question thus arises as to whether the objector could be granted an opportunity to produce the report of his own expert and as to whether there is any scope for leading evidence in case of an objection filed under Order 26 Rule 14(2) CPC?
Insofar as the larger issue of leading evidence is concerned, in the present case, the trial Court has itself framed the issues after considering pleadings pertaining to report of the Local Commissioner, objection and reply filed thereto.
In National Institute of Sports' case (supra), a suit for mandatory injunction was filed by the plaintiff. During the pendency of the VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [8] ***** suit, the trial Court appointed the Local Commissioner, who submitted his report against which the defendant filed the objections. The trial Court, without affording opportunity to lead evidence in support of the objection, upheld the report of the Local Commissioner against which the revision petition was filed. This Court has held that the Trial Court would afford an opportunity to the respondents to file reply to the objection filed by the petitioner against the report of the Local Commissioner and after affording an opportunity to the parties to lead evidence, shall decide the matter afresh.
In Chander Parkash Malhotra's case (supra), the dispute was regarding a house in Chandigarh, inherited by the sons and daughters for which a suit for partition was filed in which a preliminary decree was passed. Thereafter, proceedings for passing of final decree were initiated in which an advocate was appointed as a Local Commissioner to suggest the mode of partition, who submitted his report and against that report, the petitioner in that case filed the objections, but those objections were rejected by the Trial Court observing that as per report of the Local Commissioner, the property in dispute cannot be partitioned by metes and bounds as it is not permissible in law, in Chandigarh. The said order was challenged by way of revision and during the pendency of the revision, petitioner was permitted to challenge the Chandigarh (Sale of Sites and Buildings) Rules, 1960 which prohibits fragmentation of any property in Chandigarh. In order to determine whether the property in dispute can be partitioned, Shri Ravinder Pratap, Architect was appointed as a Commissioner who submitted his report and also appeared as a witness in the Court. VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [9]
***** According to his report, the property could have been partitioned. The respondents were given the opportunity to produce evidence in rebuttal but no such evidence was produced and they relied upon the report of the Local Commissioner, appointed by the trial Court, to contend that the property cannot be partitioned. The Court made certain observations in para 10 of its judgment, which need to be highlighted:-
"I have carefully examined the report of the Commissioner as well as the orders of the Court. The Court in this case acted casually in disposing of the petition. The Court did not give any opportunity to the petitioner to produce the evidence. Provision of Order 26 Rule 14 Civil Procedure Code lays down the procedure which the Court should follow on the receipt of the report of the Commissioner. The provision of Order 26 Rule 14 (2) Civil Procedure Code specifically lays down that the Court after hearing the objections which the parties may make to the objection, it was necessary for the Court to examine the Commissioner and afford the opportunity to the petitioner to produce evidence. A Devision Bench of the Lahore High Court in Nasir Ahkmad v. Sarfaraz-ur-Rehman Khan, AIR 1935 Lahore 501 (DB), considered the provision of Order 26 Rule 14, Civil Procedure Code and observed as follows : -VINOD KUMAR
2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh
CR No.2376 of 2011 (O&M) [ 10 ]
*****
"Although there is no provision in the Civil
Procedure Code entitling a party who objects to the report of the Commissioner to produce evidence in support of his objections, Order 26, Rule 14 provides that the Court after hearing the objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. This implies that the parties are entitled to substantiate their objections, but in such cases, as a rule of practice, the Commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the Commissioner that there is ground for further inquiry into any matter which is raised in the objections, then the parties should be allowed to produce evidence or the Commissioner be directed to amend his report accordingly"
The interpretation given by the Lahore High Court in Nasir Asmad's case (supra) is correct and in consonance with the principals of natural Justice, I am in full agreement with the view taken by the Division Bench of the Lahore Hogh Court. In view of the above legal position, it was necessary for the Court to examine the Commissioner and also afford an opportunity to VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [ 11 ] ***** produce evidence in order to substantiate his objection. Admittedly, no opportunity was given in this case and therefore, the order of the Court rejecting the objections summarily cannot be sustained and I therefore, set aside the same. Likewise, it was also incumbent upon the Court to recall this order rejecting the objection of the petitioner as the said order was passed without affording an opportunity to the petitioner to produce the evidence. The order of the Court was clearly contrary to the principal of natural Justice. The report of the Commissioner in the present case which has been accepted by the Court is also prima facie very superficial. He has not even cared to inspect the house in dispute before giving the report. When the house was locked he should have reported to the Court for obtaining appropriate order for unlocking the house. The report submitted by him without inspecting the house is totally meaningless. In this way, the Commissioner has exceeded his jurisdiction in submitting the report without inspection of the house." Insofar as the Division Bench judgment of the Lahore High Court in Nasir Ahmal's case (supra) is concerned, which has also been referred to in Chander Parkash Malhotra's case (supra), it was also a case of partition in which a Local Commissioner was appointed. The party VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [ 12 ] ***** to the dispute raised an objection that he has also made improvements in the property in dispute for which he should be compensated but no issue was framed to prove the factum of improvement or its value and in this regard, the following observations were made:-
"This implies that the parties are entitled to substantiate their objections but in such cases as a rule of practice the Commissioner should first be examined with reference to the objections, if any and if it appears from the statement of the Commissioner that there is ground for further enquiry into any matter which is raised in the objections then the parties should be allowed to produce evidence or the Commissioner be directed to amend the report accordingly. In my opinion in the present case the Court should have examined the Commissioner to ascertain from him whether he had excluded from his valuation the improvements if any made by the appellants to the property in dispute. If he had not excluded them, then the Court should have given opportunity to the appellants to prove that they had made improvements or should have directed the Commissioner to report whether any improvements had been made by the appellants and to submit a report as to their value."
From the aforesaid discussion, one thing is clear that whenever in the case of preparation of final decree of partition by metes and bounds VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [ 13 ] ***** by appointment of a Local Commissioner, in terms of Order 26 Rule 13 CPC, in case there is an objection to his report by the other side, the Local Commissioner must be examined and opportunity should be given to the other side/objector to cross-examine him and lead evidence in controversion to the report of the Local Commissioner as in National Institute of Sports' case (supra), the Local Commissioner submitted his report; the National Institute of Sports, Patiala filed objections, but the trial Court, without affording any opportunity to lead evidence, upheld the report of the Local Commissioner which was not accepted by this Court holding that opportunity should have been afforded by the learned trial Court to the other party to file reply to the objection and then opportunity should have been afforded to lead evidence before accepting the report of the Local Commissioner. Similar view has been expressed by this Court in Chander Parkash Malhotra's case (supra).
Now adverting to the facts of the present case, the report of the Local Commissioner was submitted against which objection was filed and reply to the objection was also filed. On the pleadings of the parties, specific issue has also been framed as to whether the report of the Local Commissioner is liable to be set aside on the grounds of objections taken by the objector/judgment debtor.
According to order Order 26 Rule 14 of the CPC, the report of the Local Commissioner can be varied or even set aside, on the objection filed by either of the parties and if the report is varied or confirmed, the Court is to pass a decree accordingly and if it set aside the report, it can still VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh CR No.2376 of 2011 (O&M) [ 14 ] ***** appoint a new Commission or pass any other order as it thinks fit in the facts and circumstances of the case.
Thus, once the issue has been framed, Local Commissioner appointed by the Court has been examined and cross-examined, the opportunity should have been granted to the objector to substantiate his objection. Hence, the preent revision petition is allowed and the impunged order is set aside.
December 23, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE