Madras High Court
Vemba Gounder vs Pooncholai Gounder on 24 January, 1996
Equivalent citations: AIR1996MAD347, (1996)IMLJ426, AIR 1996 MADRAS 347, (1996) 1 MAD LJ 426 (1996) 2 CIVLJ 460, (1996) 2 CIVLJ 460
ORDER
1. This revision is by the petitioner in I. A. No. 3879 of 1994 in O.S. No. 701 of 1992, on the file of the District Mimsifs Court, Tindivanam.
2. The suit is one for declaration of title and recovery of possession of the schedule mentioned property, in which, according to the petitioner/plaintiff, the respondent/ .defendant has committed trespass. During pre-trial stage, petitioner filed an application for the issue of a Commissioner, and the same was allowed.
3. An Advocate-Commissioner visited,, the property. It is said that after expiry of a"
long time, he filed the report dated 1-11-1993. The petitioner filed objections to the report-on 7-1-1994, and the same is pending consi-., deration by the Court below. In the meanwhile, he filed I. A. 3879 of 1994 on 18-11-1994 seeking appointment of another Commissioner. An objection was raised by the respondent slating that when the earlier report is pending consideration, a second Commissioner cannot be deputed, and even if there is any defect in the report of the Commissioner, the remedy of the petitioner is only to have a supplementary report by issuing the warrant to the same Commissioner.
4. By the impugned order, Court below dismissed the petition. The said order is challenged in this revision.
5. At the time of admission, notice of motion was ordered and the respondent has also entered appearance.
6. By consent of learned counsel of both parties, the revision itself was heard.
7. Before considering the merits of this case, it is better to know the position of law regarding the issue of Commission, and how far the Court will be justified in issuing a second Commission.
8. Order 26, Rule 10 of the Code of Civil Procedure deals with the procedure for issuance of Commission. It says that the report filed by the Commissioner shall be evidence in the case and that the same shall form part of the records. It further allows the parties to examine the Commissioner per sonally in open Court, touching the matters regarding which reference is made in the report or in respect of matters referred to him or in respect of those matters which were the subject-matter of investigation., Sub-rule (3) of R. 10, O. 26, C.P.C. is very important. It reads thus:--
"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."
9. It is on the basis of sub-rule (3) of "Rule 10 to Order 26, C.P.C., objections to the Commissioner's report are considered, and the Court has to pass an order as to whether it is satisfied with the proceedings of the Commissioner or not. The question of issuing a second Commission is also based on the satisfaction entered by Court. Is the Court competent to issue a second Commission.:. without passing any order under sub-rule (3) of Rule 10, Order26, C.P.C. This question: has been considered in various decisions of this Court as well as by other High Courts. In one of the earliest decisions of this Court reported in AIR 1922 Madras 219 (Thot-tamma v. C. S. Subramaniyyam), this Court has held thus:--
"The duty of the Court, whenever a Commissioner's report is objected to, is to hear objections in open Court and to decide with the aid of such evidence as it might take if the valuation should be varied and in what direction; but if a Commissioner appointed under 0.26, Civil Procedure Code has so totally misconceived his duties as to render his report and valuation useless as a basis for decision, his report should be superseded and a new Commissioner appointed. A report which is once superseded should not be used after its supersession as a basis for valuation. The practice of appointing successive commissioners whenever objections are taken the reports should be condemned."
10. In AIR 1929 Madras 661 (Ambi v. Kunhikavamma), this Court has held thus (at page 663) :--
"Civil Procedure Code does not contemplate the issue of a succession of commissions to value improvements all covering the same ground, the filing of a succession of reports all being treated alike as evidence, and the final sifting of them and selection by the Court of so much from this mass of matter as it thinks fit to adopt."
11. In AIR 1930 Madras 236 (Visva-nandan v. Mangamma), it was held thus (at page 238):-
"The practice of appointing a second Commissioner without formally recording objections to the first Commissioner's report and without considering whether the first Commissioner's report should be superseded.
or not is a practice which cannot be top'., strongly 'condemned. Reasons for supersed ing the first Commissioner's report must be recorded in writing by the Court."
12. The same was followed in the decision. reported in AIR 1931 Madras 73 (KunhP Kutti AH v. Md. Haji) wherein it was held thus ' '(at page 76):--
"A second commission should not be issued to deal with one and the same subject unless it is thought that the report of the first Commissioner is not satisfactory in which case the earlier commission should be wiped out altogether and attention should be paid only to what is reported by the second Commissioner. Instead of that if the Judge balances the report of one Commissioner against that of the other and expresses a preference for the view of the first Commissioner, he acts with great impropriety and contrary to what is contemplated by 0.26, R. 10(3)."
13. In AIR 1949 Madras 612 (K. S. Ramachar v. K. S. Krishnachar), a learned Judge of this Court has held thus ;--
"Order appointing a second Commissioner, without assigning any reasons why the report of the previous Commissioner is ignored, is not only contrary to the provisions of O. 26, R. 10(3) but is to be condemned......"
14. In 1985 (1) Mad LJ 254 (R. Viswa-nathan v. P. Shanmugham), a learned Judge of this Court has held thus :--
"It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will notbe proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under O. 26, R. 10(3). The power can be exercised only after the Court below renders a finding that the proceedings and the report of the eailier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express any opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The Court below has opined that the truth or otherwise of the allegations therein against the Commissioner's report need not be gone into and it is better to change the Commissioner. This is not the proper way of dealing with the matter."
15. In 1988 (2) Mad LW 440 (Kanda-swamy v. K. C. Ramaswami), this Court has held thus :--
"There is no provision of law which would enable a Court to appoint a second Commissioner with the consent of the previous Commissioner. A Presiding Officer of the Court cannot function by relying upon the commonsense aspect as known to him, but has to function within the four corners of the Code of Civil Procedure. Merely because certain objections have been filed, it would not result in a second Commissioner being appointed, on that day itself. It is obligatory on the part of the Court to give convincing reasons as to why the previous report filed cannot be acted upon."
16. Even though the legal position declared by this Court is sufficient to justify the action of the Court below, in dismissing the application of the petitioner, I would refer to the decisions of other High Court also.
17. In (Satya-narayana v. T. Jalaiah), a learned Judge of that High Court followed two decisions of this Court. They are:-- AIR 1931 Madras 73 and AIR 1949 Madras 612 (both cited supra). Learned Judge deprecated the practice-of appointing a second Commissioner without passing an orderunderO. 26, R. 10(3),C.P.C. regarding the satisfaction or otherwise of the report filed by the previous Commissioner.
18. In (K. Rama-Ungam v. M. V. Ramanathan), it was held thus (at page 66):--
"Where a particular matter has already been the subject of investigation and a report has been submitted by a Commissioner in that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and therefore should be set aside."
19. In 1983 Ker LT258: (AIR 1984 NOC 197) (Ummer v. Muhammed), the Kerala High Court has held thus:--
"The Court can issue a second commission only under O. 15, R. 10(3) of the Code. As per the above provision, the Court should, for any reason, be dissatisfied with the proceed-ings of the Commissioner already deputed. The dissatisfaction can be before the submission of the report or after that. No question of setting aside the report arises if the Court was dissatisfied about the work of the Commissioner and issued a second commission before he submitted the report. Proceedings of the Commissioner cannot but include the report of the Commissioner if a report has been submitted. If the Court is dissatisfied about what the Commissioner did, can the report be salvaged simply because the report is not specifically made mention of in R. 10(3). Not only that, the Court gets jurisdiction to issue a second commission only if the Court for any reason is dissatisfied with the work of the first Commissioner. In this case, not only that the Court did not express any dissatisfaction about the work of the first Commissioner it was also held that no grounds are made out to set aside his report. The Court has not even postponed its decision on the question of setting aside the commission report. When the second commission report is also submitted, the Court will have to accept one report and disregard the other. Going by the scheme of the relevant provisions of the Code, this is not something which is contemplated. Simply because R. 10(3) does not provide for the setting aside of the first commission report, it cannot be said that second commission can be issued without setting aside the first commission report. If, for example, the Court feels some more details are to be gathered, the Court can depute the same Commissioner for the same purpose and in that case, no setting aside of the report already submitted is necessary. At any rate, , the Court has no jurisdiction to issue a second commission when it has not only not ex-pressed any dissatisfaction about the work of the first Commissioner but has refused to set aside his report." The said decision was approved and the principles were again reiterated by the Kerala High Court in the decision (Swami Pramananda Bharathi v. Swami Yogananda Bharathi). A Division Bench of the Kerala High Court said in that decision that the issuance of a second commission without passing order under O. 26, R. 10(3), C.P.C. is a vital or flagrant violation of law and that the same amounts to a jurisdictional error. The relevant portion of the judgment reads thus (at page 89):--
"Appointment of second Commissioner, without setting aside previous Commissioner's report and proceedings, being illegal or otherwise beset with a jurisdictional error, S.99 of C.P.C. can be of no avail. In this context, it is to be remembered that the word "jurisdiction" has acquired a wide meaning in recent times. The word "jurisdiction" is a "verbal cast of many colours", and the dividing line between lack of jurisdiction or power and erroneous exercise of it, is very thin, but nonetheless the distinction between the two has not been completely wiped out and in the final analysis, the concept of jurisdiction for the purpose of judicial review, has been one of public policy. It appears that, if the error of law, committed by the Court or Tribunal is "vital" or a "flagrant one", it is considered to be a jurisdictional error..........."
The Bench further held that a restricted compliance of O. 26, R:12, C.P.C. is necessary on the ground of public policy. The relevant portion of the judgment reads thus :--
"Appointment of second Commissioner and the reports filed by him without setting aside first Commissioner's report, is wholly illegal and without jurisdiction. In such case reliance on second Commissioner's report for deciding case will be unauthorised and without jurisdiction. Only if the Court has reason to be dissatisfied with the proceedings and report of the first Commissioner for reasons stated, it can appoint a second Commissioner for further inquiry. This is a condition precedent. The provision contained in 0.26, R. 12, is "vital". Strict adherence alone will facilitate speedier, effective and cheaper administration of justice. The rule is enacted on ground of public policy."
21. Now let us see as to what various authors of Civil Procedure Code have said on the subject under discussion.
22. Mulla, on Code of Civil Procedure, 14th Edition, Vol. Ill (at page 1880), has said thus :--
"The practice of issuing several commissions and arriving at a valuation by a process of selection from the reports of each Commissioner is improper. A second commission should not be issued unless the report of the first Commissioner is unsatisfactory............."
23. Sir John Woodroffe and Ameer Ali, on Code of Civil Procedure, 3rd Edition, Vol. III (at page 2330), have said thus :--
"It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further inquiry, much less the scrapping of the earlier report as a whole and appoint a fresh commission. The power m this behalf is circumscribed by the principles under O. 26, R. 10(3) of the Civil Procedure Code. The power has to be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry."
24. In 'The Code of Civil Procedure', Volume-- 1st Edition (1980), at page 1712, the learned author S. K. Mukerjee has extracted a passage from the decision reported in AIR 1949 Madras 612 (supra), and has condemned the practice of appointing more than one Commissioner for the same purpose, without entering a finding as to the satisfaction or otherwise of the report filed by the first Commissioner. The said passage reads thus:--
"The District Munsif without considering the merits of the application and without giving any reasons why the previous Commissioner's report should be ignored, appointed a fresh Commissioner as he thought it was necessary in the interests of justice. This procedure is not only contrary to the express provisions of 0.26, R. 10(3), Civil Procedure Code, but'has been condemned more than once by this Court."
25. Sarkar, on Law of Civil Procedure,"
Eighth Edition (1982), Volume 2, at page 1232, has stated thus :--
"A second Commissioner must not be appointed without hearing objections to first Commissioner's report and superseding it for reason to be recorded.......If the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct the same Commissioner to remedy the defects. Practice of appointing new Commissioner without considering the value of a Commissioner's report condemned...,..." .
26. In this connection, it is better to consider what is the procedure adopted by the Courts when objections are filed to the report filed by the Commissioner. In 'Code or Civil Procedure', 3rd Edition, Volume 3, at page 2328, Sir John Woodroffe and Ameer Ali, have said thus:--
"It is the duty of the Court to dispose of the objection filed by the plaintiffs against the pleader Commissioner's report before actually taking up the suit for hearing on merits."
27. Likewise, in B. V. Viswanatha Aiyer's The Code of Civil Procedure', Fourth Edi--tion (1986), at page 1058, the learned author has said thus:--
"..... When a Commissioner makes a report, Court of first instance and Court of appeal should consider it before accepting a decree in accordance with it.......The duty of a Court whenever a Commissioner's report is objected to is to hear objections in open Court and decide the question......."
28. In (Kalandi Swain v. Braja Kishore Dass), a learned Judge of the Orissa High Court approved the statement of law declared in the decision reported in (1978) 46 Cuttack Law Times 1, wherein it was ..held thus:--
"After the Commissioner submits his report, the trial Court will first of all decide if the report submitted wil! be accepted as a piece of evidence. If the trial Court accepts the Commissioner's report as a piece of evidence, after hearing the parties it shall then proceed to dispose of the suit in accordance with law after giving the parties an opportunity once again to be heard on the entire evidence on record. In case the Commissioner's report is not accepted, the trial Court will give the plaintiff an opportunity, if permissible under the law to take out a fresh commission, and thereafter dispose of the suit as indicated above."
Learned Judge further held that it would be the duty of the trial Court to dispose of the objection filed by a party against the pleader-Commissioner's report before actually taking up the suit on merits.
29. In this case, admittedly, there is no finding whether the report filed by the Commissioner can be accepted or not, i.e., there is no finding by the Court below about the satisfactory procedure adopted by the Commissioner in filing the report and also about the correctness of the report. So long as there is no finding, the jurisdiction of the Court in appointing a second Commissioner as sought for by the petitioner is doubtful. The dismissal of the application by the Court below cannot, therefore, be interfered with.
30. The petitioner has filed objections to the report. According to him, even the suit property is not identified by the Commissioner and he has simply copied a survey plan with the help of a surveyor. If that be so, the petitioner should have taken steps to examine the Commissioner or let in evidence to satisfy the Court below that the report is faulty and the same should be scrapped and the same Commissioner should be directed to file another report or a fresh Commission should be issued, with a direction to locate the property as sought for in the application. No such attempt was made by the petitioner. Even though objections were filed in the year 1994, till the dismissal of the present application, the petitioner did not take any steps in this regard. He could have moved the Court below to enter a finding regarding the acceptability or otherwise of the report. I am sure, if such an attempt had been made by the petitioner, the Court below would have rendered a finding on the Report already filed by the Advocate-Commissioner. 1 have already said that when objection is raised on a Report it is the duty of the dial Court to enter a finding regarding the same before asking the parties to let in evidence on the merits of the case. For the purpose of substantiating their Objections to the Report, probably examination of the Commissioner alone may not be sufficient. Parties may also have to be examined. Only after taking such steps and after arguments, when the Court enters a finding on the Report already filed, if he is aggrieved by the finding, the petitioner can insist upon issuing a second Commission or remit the warrant to the same Commissioner, for curing the defects made mention of in the Objections. Merely accusing the trial Court of not following the procedure is not proper.
31. It may also be noted that if the Court is satisfied that the Report is riot satisfactory, it need not insist on the petitioner to file an application for the issue of a second Commission. It is the duty of the Court to appoint a second Commissioner or remit the matter to the same Commissioner, for, the Application is already there. Only a direction is to be given to the Commissioner how to implement the warrant of appointment, and how the work has to be done.
32. Learned counsel for the petitioner submitted that the Court below has observed that the remedy of the petitioner is to seek remittance of the Commission Warrant to the same Commissioner. Therefore, according to the learned counsel, even if a second Commissioner is not appointed, at least the Court below should have remitted the Warrant to the same Commissioner, for rectifying the defects mentioned in the Objections. It is true that such objections are there in the Order. But, according to me, those observations arc also not warranted so long as there is no finding by the Court below that the Report already filed by the Commissioner is defective or that it cannot be accepted. Learned counsel for the petitioner cannot take refuge merely on those observations.
33. In the result, I dismiss the Revision with costs. I direct the Registry to communicate a copy of this Order to the Court below forthwith, with a direction to follow the procedure mentioned above not only in this case but also in all the cases where Conimis-. sioner's Report is obtained under Order 26, Rule 10, C.P.C. I think it will be proper on the part of the trial Court to post the case for filing Objections whenever a Commissioner's Report is filed, and thereafter take evidence on the Objections without the party asking for the same. If the -parties are not availing that opportunity, the case could be posted in the list for disposal, on merits. It is made clear that the dismissal of this Revision Petition will not bar the plaintiff/petitioner from taking appropriate steps for getting the Commissioner's Report set aside or for getting the Commission remitted to the same Commissioner, of course, subject to the satisfaction of the trial Court regarding the same, by following the procedure under Order 21, Rule 10, C.P.C.
34. Revision dismissed.