1. These three revision petitions arc directed against the common order disposing of three interlocutory applications m a partition suit, Original Suit No. 75 of 1964 on the file of the Civil Judge, Mangalore.
2. The suit was filed by the first respondent Mahabala Bhatt as plaintiff against his father Ramachandra Bhat (Petitioner), his brothers Shama Bhat and Shivarama Bhat (Respondents 2 and 3) and the said Shama Bhats two sons Ramachandra Bhat and Ramakrishna Bhat, -- arrayed as defendants 1 to 5 respectively (Vide G. R. P, 537/67).
3. Immediately on filing the suit, the first respondent (plaintiff) made an application for appointment of a Commissioner to prepare an inventory of moveables and jewellery in the family house together with valuation thereof and also to make an estimate of the yield of an areca garden belonging to the family situated within a particular survey number specified in the application. To that application, he made only defendants 1 and 2 parties as respondents. A lawyer practising in Mangalore was appointed Commissioner for the purpose. He went to the family house and the areca garden and made a report in compliance with the direction in Court's warrant appointing him as Commissioner. He gave notice of his proposed execution of the warrant only to defendants 1 and 2 and not to the third defendant. The third defendant is said to be residing in Mangalore as an apprentice under a Chartered Accountant. No notice was given to him. The first two defendants admitted their presence at the time the Commissioner executed his warrant. Third defendant was not present.
4. After the report was submitted to the Court, the first defendant filed one application R. I. A. No. 246/1965 _to set aside the report and the third defendant filed two applications, -- R.I.A. No./296/1965 to set aside the order of Court for the appointment of Commissioner and R. I. A. No. 458/1965 to set aside the Commissioner's report. AH the three applications have been dismissed by the Civil Judge.
5. Hence, these revision petitions, C. R. Ps. 536/67 and 538/67 by the third defendant and C. R. P. 537/67 by the first defendant.
6. All the factual allegations made in support of the prayer for setting aside the report have been dealt with by the Civil Judge in an elaborate order and the findings of fact recorded by him are not open to question in a revision petition.
7. The only point worthy of consideration is whether the report is available or can be made use of in the suit against the third defendant, for the reason that no notice had been given to him either by Court or by the Commissioner of the execution of the commission.
8. It has been argued on his behalf that the entire report must be set aside as illegal on the basis of the principle enunciated by Cornish, J. in Latchan Naidu v. Ramakrishna Ranga Rao : AIR1934Mad548 which has been followed and applied by Kalagate, J. of this Court in an unreported decision in Second Appeal (M) 60 of 1956 disposed of on 11th October 1960 (Orissa).
9. The principle stated by Cornish, J. is that the report of the Commissioner becomes evidence and part of the record in the suit by virtue of Rule 10 (2) of Order 26 of the Code of Civil Procedure and that a report prepared without issue of notice to any party as required by R. 18 of the same Order would bea report prepared behind the back of the party not so served and that therefore it would be unjust to treat it as evidence against him. There is a general observation that there is no power in the Court to issue an ex parte commission.
10. Now, Rule 18 of Order 26 of the Code of Civil Procedure reads as follows:
'18(1) Where a commission is issued under this order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.'
11. It is correct to say that the crux of the matter is that under Rule 10 (2) of Order 26 a Commissioner's report is made evidence available in the suit concerned. Now, a Commissioner is not required to be placed under an oath or to work under an oath as a witness is always required to do. Nevertheless, a report made by him is elevated to the position of evidence tendered on oath in open Court. It is a departure from the normal rate of taking evidence. Hence, the interpretation to be placed on such a legal provision making a definite departure from the normal rule is that before effect could be given to that special provision, every condition or every detail of the procedure prescribed by the law for the preparation of such a report should be strictly complied with.
12. The general statement that the Court has no power to make an ex parte order issuing commission cannot of course be accepted. The power of the Court to make interlocutory orders without giving notice to the opposite parties in the first instance is well-known and undoubted, because the law recognises that there are cases of emergency and expediency which make it necessary in the interest of justice to pass an ex parte order because, to issue notice in such circumstances would surely defeat justice by permitting unscrupulous parties to change or even to destroy evidence necessary for a proper disposal of the main controversy.
13. Even if the remark should be related to Rule 18, I do not think that there is any disobedience of the said rule or departure therefrom if the Court, upon making an ex parte appointment of the Commissioner, directs the Commissioner to issue notice to the parties interested before executing the commission. In such an event, the Commissioner would be the person specially appointed by the Court to serve notice on the parties of the type required by Rule 18 of Order 26.
14. Now, in the present case, defendants 1 and 2 have been served and were present at the time of the execution of the warrant. They could have no objection or statable case for getting the Commissioner's report set aside on the alleged contravention of or failure to obey Rule 18 of Order XXVI. Hence the case for a total invalidation of the report is, even the facts of this case, impossible.
15. Even in the case of the third defendant who has not been served with notice and who was not present at the time of the execution of commission, the legal consequence would be not a total invalidation of the report but non-availability of the same as evidence under Rule 10(2) of Order 26. In other words, the report by itself, without anything more, cannot become or be available as evidence in the suit as against the third defendant.
16. But, that is not saying that that report cannot at all be made use of in any other way in the suit. The Commissioner, for example, can be examined as a witness in which case, the report prepared by him on a prior occasion regarding his observations of facts which are relevant to the disposal of the suit may be made use of either for corroboration of his oral evidence or for contradiction thereof in accordance with the relevant provisions of the Evidence Act.
17. In this case, it is pointed out on behalf of the respondent-plaintiff that the Commissioner was actually examined for purposes of these interlocutory applications and certain answers have already been elicited from him in regard to it. Whether and if so to what extent this evidence may be made use of for the purpose of the main trial of the suit, is not a matter on which I need express or do express any opinion at this stage.
18. In the case decided by Kalagate, J. there were two defendants in the suit and both of them were not served with the notice of the execution of the Commission. Hence, the report in that case could not be made use of as evidence against either of them. The general statement in that judgment to the effect that the Commissioner's report was neither legal nor valid in law must be limited to the facts of that case and understood in the light of the principles discussed above.
19. Civil Revision Petitions Nos. 537/67 and 538/67 are dismissed and Civil Revision-Petition No. 536/67 is also dismissed subject to the observations made above, namely, that the report of the Commissioner, by itself, cannot be regarded as evidence against the third defendant under Rule 10(2) of Order 26 of the Code of Civil Procedure.
20. No order as to costs.
21. Order accordingly.