Gauhati High Court
Jogendra Chandra Shill vs Anukul Chandra Shill And Ors. on 31 March, 2004
Equivalent citations: AIR 2005 (NOC) 12 (GAU), 2004 A I H C 3465, (2005) 29 ALLINDCAS 166 (GAU), (2005) 4 CIVLJ 257, (2005) 2 GAU LR 128, (2004) 3 GAU LT 696
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 27.11.2003 passed by the learned Civil Judge, Junior Division, Khowai, West Tripura rejecting the prayer of the petitioner for rejecting the report of the Survey Commissioner and for appointing another Survey Commissioner for local inspection of the suit land.
2. The material facts of the case may be briefly stated. The petitioner-plaintiff claims that he is the owner in possession of the land measuring 0'03 acre under Plot No. 2924 in Khatian No. 69 of Mouja-Madhya Kalyanpur. He also claims that he is the owner of the land measuring 0'01 acre under Dag No. 2927 in Khatian No. 1/119 of Mouja-Madhya Kalyanpur. It is asserted by the petitioner that when the respondents dispossessed him of a portion of the aforesaid lands measuring 33 feet in length and 6 feet in width, i.e., 198 sq. feet, he instituted a suit for recovery of possession under Section 6 of the Specific Relief Act, 1963 before the learned Civil Judge, Junior Division, Khowai. Simultaneously, he also filed an application for temporary injunction to restrain the respondents from changing the character of the suit land. The suit and the application are registered and numbered as T.S. No. 4 of 2003 and Misc. Case No. 1 of 2003 respectively.
3. It would appear that the respondents contested both the suits and the application and filed their written statement of defence and written objection. However, the learned Civil Judge, after hearing the parties on the prayer for temporary injunction, passed the order dated 24.7.2003 directing both the parties to maintain the status quo in respect of the suit land pending disposal of the suit and at the sametime observing that the boundary dispute between the parties could not be ascertained at that stage without appointing a Survey Commissioner. Apparently, taking cue from the above observation, the petitioner filed an application under Order XXVI, Rule 9 of the Code of Civil Procedure (hereinafter called 'the Code') for appointment of a Survey Commissioner to make local investigation. The application was allowed by the learned Civil Judge and a Survey Commissioner was accordingly appointed. The Survey Commissioner after making local investigation submitted his report dated 1.10.2003 to the learned Civil Judge.
4. It appears that dissatisfied with the report of the Survey Commissioner, the petitioner submitted an objection before the learned Civil Judge questioning the propriety and legality of the report and prayed that the report be rejected and another Survey Commissioner be appointed. The contention of the petitioner therein, among others, is that the Survey Commissioner did not act properly in fixing Plot Nos. 2913, 2919 and 2928 as the starting point instead of the existing Government pillar lying on the road. However, the learned Civil Judge by the impugned order dated 27.11.2003 rejected the objection of the petitioner in fixing the starting point even though he was present at the time of the local investigation. The learned Civil Judge further observed that the report of the Survey Commissioner was provisionally accepted.
5. Assailing the impugned order, Mr. S. Deb, the learned senior counsel for the petitioner, submits that the learned Civil Judge committed manifest error of law in accepting the report of the Survey Commissioner without examining him and without giving the petitioner an opportunity to test the veracity of the report. It is also contended by the learned counsel that the trial court should not have appointed the Survey Commissioner when no issue had been framed and that there is no provision of law for provisional acceptance of the report. Countering the submissions of the learned counsel for the petitioner, Mr. K.N. Bhattacharjee, the learned senior counsel for the respondents points out that since the appointment of the Survey Commissioner was made on the application of the petitioner himself, it does not now lie in his mouth to impeach the validity of such appointment. It is also pointed out by the learned counsel that the petitioner has never prayed for examination of the Survey Commissioner and, in the absence of such a prayer, the question of giving him an opportunity to examine the Survey Commissioner cannot arise. According to the learned counsel for the respondents, the learned Civil Judge acted within his jurisdiction in passing the impugned order, and the same does not call for interference by this Court.
6. The provisions relating to the appointment of a Commissioner for local investigations is enshrined in Order XXVI, Rule 9 of the Code. The power to appoint a Commissioner for local investigation is conferred upon a civil court in order that the Court may better appreciate, among others, any matter in dispute. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from the very peculiar nature can only be had at the spot. The procedure to be adopted by the Commissioner in the local investigation and the evidentiary value of his report are provided in Order XXVI, Rule 10 of the Code, which may be reproduced hereunder.
"10. Procedure of Commissioner (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.
(2) Report and depositions to be evidence is 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 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.
(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."
It is thus obvious from the above Sub-rule (2) that the report of the Commissioner and the evidence taken by him during the investigation shall be evidence in the suit and shall form a part of the record. Therefore, there can be no controversy with regard to the admissibility of the report as evidence during the trial and making the report of the Commissioner as a part of the record. However, before the report is made a part of the record and taken as a piece of evidence, it is open for the Court to examine on matters referred to him or mentioned in his report or as to report or as to the manner in which he has made the investigation. Similarly, the parties, with the permission of the Court, may examine the Commissioner on matters referred to earlier. It is also obvious that if the Court or any of the parties do not make objection to the report, the report becomes final and becomes part of the record and can be taken as a piece of evidence. No difficulty is likely to arise in the event the Court is not satisfied with the report of the Commissioner because the Court can then direct further inquiry into the matter. But what will happen if either of the parties takes exception to the report of the Commissioner ?
7. To my mind, where objection is raised by either of the parties to the report of the Commissioner, the Court has to be satisfied that the local inspection was done properly and free from infirmity before he accepts the report. In a case, the Commissioner is examined as witness either by the Court or by any party with the permission of the Court, this point has to be judged in the light of the evidence of the Commissioner in Court. Where gross error of law is found from the proceeding or report of the Commissioner or where there are serious discrepancies between the statement of the Commissioner in Court and the contents of the report or the evidence during local investigation, it will not be safe to conclude that the report is reliable and acceptable. It is to be borne in mind that the report of the Commissioner is intended to assist the Court in better appreciation of the matter in dispute in the case. If doubtful report is accepted and genuine objection against the report brushed aside, the decision of the Court will result in grave miscarriage of justice, thereby defeating the very object of appointing a Commissioner.
8. In the instant case, the grievance of the petitioner is that his application for rejecting the report of the Survey Commissioner and for appointment of another Commissioner has been rejected by the Trial Court. His other grievance is that the Trial Court has provisionally accepted the report of the Commissioner. The other grievance that the Trial Court ought not to have appointed the Commissioner is noted only to be summarily rejected for the simple reason that it was the petitioner who himself applied for such appointment. He cannot simply blow hot and blow cold. In so far as his prayer for rejection of the report is concerned, no specific provision is found in Order XXVI, Rule 10 of the Code for the same. In fact, the provision in Order XXVI, Rule 10(3) militates against the rejection of the report. If the Court is not satisfied with the report of the Commissioner, he may take recourse to Sub-rule (3) of Rule 10 of Order XXVI by ordering further inquiry which may include appointment of a new Commissioner for local investigation. Such dissatisfaction of the Court with the proceedings of the Commissioner will necessarily be the result of the examination of the Commissioner by the Court, or with the permission of the Court, by any of the parties. Admittedly, in the instant case, no application is filed by the petitioner for examination of the Commissioner. Without examination of the Survey Commissioner, I fail to understand how any defect in his proceeding or discrepancies in his report can be made out by the petitioner.
9. I am not unmindful of the fact that the petitioner is taking resort to Article 227 of the Constitution of India for redressal of his grievance since he has no remedy of a civil revision. But the power of superintendance of this Court under the aforesaid Article is extraordinary in nature and must be exercised most sparingly and only in appropriate cases and could not be invoked to correct an error of fact or of law which only a superior court could do on appeal. The High Court also would not in the guise of exercising such jurisdiction convert itself into a Court of appeal, and its function would be limited to ensuring that the subordinate court or tribunal functioned within the limits of its authority. In Surya Devi Rai v. Ram Chander Bal, (2003) 6 SCC 675, the Apex Court held that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied ; (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
10. I have carefully gone through the objection filed by the petitioner against the report of the Survey Commissioner, which is at Annexure-9 to the writ petition. The principal grievance of the petitioner appears to be that the Survey Commissioner did not act properly in fixing Plot Nos. 2913, 2919 and 2928 as the starting point for local investigation whereas the correct starting point should have been the existing Government pillar lying on the road. The learned Civil Judge in the impugned order noted this objection of the petitioner and recorded the finding that the fixation of the starting point for local investigation had been made in the presence of both the parties at the time of local investigation and that none of them had raised objection in that behalf. It is on the basis of this finding that the learned Civil Judge rejected the application of the petitioner. On going through the writ petition and the objection of the petitioner, I do not find any material to show that such objection was raised by the petitioner before the Survey Commissioner. No other ground of objection against the report of the Survey Commissioner is available in the objection filed by the petitioner. As adverted to earlier, no attempt was made by the petitioner to examine the Commissioner on any matter referred to in Order XXVI, Rule 10(2) of the Code. Consequently, the findings and the conclusion of the learned Civil Judge in the impugned order do not suffer from errors apparent on the face of the record, or have occasioned grave injustice or gross failure of justice.
11. For what has been stated above, the writ petition is without merit, and is hereby dismissed. The rule is discharged with no order as to costs having regard to the facts and circumstances of the case.