Orissa High Court
K. Raghunath Rao vs Smt. Tumula Jailaxmi on 3 September, 1986
Equivalent citations: AIR1988ORI30, AIR 1988 ORISSA 30, (1987) 64 CUTLT 304 (1986) 2 ORISSA LR 622, (1986) 2 ORISSA LR 622
ORDER S.C. Mohapatra, J.
1. In this Civil Revision by the defendant the order appointing a Commissioner in exercise of the power under Order 26, Rule 9, C.P.C. is assailed.
2. Plaintiffs suit as it stands at present is for mandatory injunction to the defendant for removal of a wall constructed by the defendant obstructing his passage. The case of the defendant is that the land which is claimed by the plaintiff to be a passage is a part and parcel of his backyard which was not used by the plaintiff as a passage. There is no dispute as to the disputed land belonging to different plot numbers.
3. Before evidence was adduced in the suit, plaintiff filed an application for appointment of a Commissioner for local investigation. In spite of resistance by the defendant, the prayer was allowed. The following order was passed :
"12-3-86. Both parties filed haziras. The petition under Order 26, Rule 9, C.P.C. filed by the plaintiff and the counter thereto are put up.
Heard. It will elucidate the matter if the Commissioner inquires into the matter. Hence, the petition, under Order 26, Rule 9 C.P.C. is allowed, plaintiff to deposit a sum of Rs. 50/- towards Commissioner's fee in course of the day....."
4. Mr. S. S. Rao, the learned counsel for the petitioner submitted that the trial Court exercised its jurisdiction with material irregularity inasmuch as there is no finding whether the local investigation shall be requisite or proper for the purpose of elucidating any matter in dispute. Mrs. Padhi, the learned counsel for the plaintiff-opposite party while justifying the order on merits submitted that a Commissioner having been appointed should not be interfered with since the defendant would not be prejudiced thereby.
5. An order to issue of a commission to any person under Order 29, Rule 9, C.P.C. is discretionary. Being a judicial order it is required to be supported by reasons, so that propriety of the exercise of discretion would be visible. A bare perusal of the order shows that the same is not supported by any reason. On this short ground the order is liable to be set aside on account of exercise of jurisdiction with material irregularity. However, the contention of both the parties require answer in this case.
6. A report of the Commissioner under Order 26, Rule 10, C.P.C. is a piece of evidence. Thus, by appointment of a Commissioner, the Court collects evidence obviously for deciding the dispute justly. The report of the Commissioner, no doubt, is only a piece of evidence which can be rubutted by other evidence. However, the Court while issuing writ to a person as he minks fit for making a local investigation is to see that it does not improperly assist a party by collection of evidence when such party is capable of adducing such evidence himself, since report of the Commissioner has no greater sanctity than any other evidence in the case. In the light of this principle the various decisions have been rendered which require no reference. Thus, appointment of a Commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. Merely because the matter in dispute can be elucidated by issue of writ to a Commissioner, the power under Order 26, Rule 9, C.P.C. is not to be exercised freely.
7. The power to appoint a Commissioner under Order 26, Rule 9, C.P.C. is wide. Wider the power, greater should be the restraint.
8. In ILR (1966) Cut 412, A. Satyanarayana Naidu v. Sarbeswar Das prayer was made for issuing a commission at the cost of the defendant to rebut the report of the Commissioner. It was held that Court should assist a party to depute a person for that purpose which, however, would not be a piece of evidence under Order 26, Rule 10, C.P.C. In that case, it was not disputed that the disputed land can be measured by an Engineer or other expert. In ILR (1959) Cut 589 : (AIR 1960 Ori 66), (Labanya Devi v. Gobinda Malik) relying upon a decision reported in AIR 1928 Pat 278, Mt. Saraswati Bahuria v. Suraj Narain, it was held that the Commissioner was not competent to take evidence on the point of possession nor was the Court competent to act upon the evidence taken by the Commissioner on this point.
9. In (1973) 39 Cut LT 180 : (AIR 1973 Ori 240), Debendranath Nandi v. Natha Bhuiyan it is observed thus :
"..... The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record The trial Court's decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view, of the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case....."
The aforesaid passage makes it clear that local investigation by a Commissioner can be made in exercise of the power under Order 26, Rule 9, C.P.C. where visit to the spot is necessary. That would be a local investigation requisite or proper. When the report would be necessary to appreciate the evidence on record, a commission can be issued in proper case. Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures from the normal rule for issue a commission also. For illustration : Where evidence is necessary to know the depth of water in a particular season a Commissioner can be deputed even though evidence has not been recorded. Where it is to be found as to on which plot the disputed land lies, a writ can be issued to any person to relay the same even though no evidence is required if the Court finds that the parties themselves cannot produce evidence to that effect. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. This much can be said that the basic pre-requisite for issue of such a writ is the satisfaction of the Court that a local investigation is requisite or proper. This satisfaction is to be judicial satisfaction based on reason.
10. On the aforesaid analysis, I am satisfied that before issue of writ, the trial Court did not apply its judicial mind. Accordingly, the order is to be set aside. Mrs. Padhi strongly relied upon the decision in C.R. No. 593 of 1983 decided on 6-9-1984 (Ori), (Krishna Samal v. Judhisthir Behera) where I did not interfere with an order of issue of a writ to a Commissioner before recording evidence since no prejudice or failure of justice was made out by the party assailing the order, as the order was discretionary. This much would be sufficient to indicate that in all cases of issue of a commission, interference by exercise of the revisional power is not called for. Where on the face of the order itself, it is found that the Court has not recorded the satisfaction supported by reasons, the Court is satisfied that parties themselves can adduce evidence and it is found that there is no immediate requirement for issue of commission, the Court can interfere with the discretionary order since the wide discretionary power under Order 26, Rule 9, C.P.C. has not been exercised keeping the norms of the language of Order26, Rule 9, C.P.C.
11. In the result, the civil revision is allowed. The order is set aside and the trial Court is directed to consider the application for appointment of commission and the objection afresh. There shall be no order as to costs.