1. This is an application to revise the order of the Subordinate Judge, Vijayavada enhancing the fee payable to the Commissioner from Rs. 350/- to Rs. 1350/-. The question that arises for consideration is whether the subordinate Judge acted in accordance with the provisions of the Civil Procedure Code or the Civil Rules of Practice in directing an additional fee of Rs. 1000/- to be paid to the Commissioner.
2. The relevant provisions are Order XXVI Rule 15(1) C P. C. and Rule 82 of the Civil Rules of Practice. Order XXVI Rule 15(1) C. P. C. is as follows:
'Before issuing any commission under this order, the court may order such sum if any as it thinks reasonable for the expenses of the commission to be, Within a time to be fixed, paid into court by the party at whose instance or for whose benefit the commission is issued'.
Rule 82 of the Civil Rules of Practice runs in the following terms:
'(1) Every application for the issue of a commission shall be supported by an affidavit setting forth the estimated expenses of the commission, and the ' remuneration, if any, of the proposed commissioner.
(2) The court shall thereupon fix the amount of the commissioner's fees and direct payment thereof into court, on a day to be fixed by the court; and the commission shall not be issued unless the sum fixed by the court for the purpose aforesaid is paid into court within the period, limited therefor; provided that the court may, from time to time, on the application of any party, direct that any further sum be brought into court by any party'.
The Subordinate Judge directed that a sum of Rs. 100/- should be deposited for examining the. witnesses at Madras and a sum of Rs. 250/- for examining the accounts and witnesses. The learned Subordinate Judge was right in holding that the plaintiff at whose instance the commissioner was appointed should deposit the additional remuneration into court. There is no force in the contention of Sri Appa Rao, the learned Advocate for the petitioner, that his client alone ought not to have been made liable to pay the additional commission lee.
3. The substantial question that tails to be decided is whether there is jurisdiction in the court to order additional remuneration to be paid. The provision for directing further sums to be brought into court at the instance of any party so far as our courts are concerned is Rs. 82 of the Civil Rules of Practice. The other High Courts exercise the power for payment of additional remuneration to the commissioner under Section 151 C. P. C. on the ground that it is not possible for the court to estimate the actual ice payable to the commissioner at the time of ordering the commission application. I am inclined to take the view that under Section 151 C. P. C. read with Rule 82 of the Civil Rules of Practice, the court has the power to direct additional fee to be deposited or paid to the commissioner in appropriate cases. .
4. But, I wish to point out that the proper .. course would be for the commissioner, who is dissatisfied with the initial fee, to apply to the court sufficiently early for the enhancement of the commission fee. He ought not to wait till the entire commission enquiry is over and then claim an exorbitant or a huge fee. As pointed out in Nadia Bashi v. Sudha Bakul, 40 Caf WN 1216, the commissioner ought to suspend his work and bring the matter to the notice of the court in order to enable the court to examine his work and to determine approximately what further amount the petitioner should be called upon to deposit.
5. In fixing the remuneration, as pointed out by Macpherson J., in Surendra Nath v. Secy. of State, AIR 1934 Pat 316(2), the court should act judicially. It ought not to order payment of a litigant's , money 'without return nor make a gift of it to a charlatan who has only made a pretence of executing a commission .....'. The learned Judge further pointed out that 'it is incumbent on the court scrupulously to protect the person who has deposited money towards a commissioner's fee and all the more since he is powerless to protect himself against the Commissioner'. In this connection I wish to point out that there is an unfortunate tendency on the part of some judicial officers to appoint their favouri-tes or nominees as commissioners, receivers, or liquidators and to distribute the litigant's monies to them freely and lavishly, and I condemn that practice.
6. So far as this case is concerned, I understand from the learned Advocates on both sides that the respondent who was appointed as a commissioner, is a respectable Advocate of considerable standing and that he was also the standing counsel for the Vijayavada Municipality. His remuneration was initially fixed at Rs. 350/-. After the enquiry was over, he asked for an additional remuneration of Rs. 2,500/-. The court granted an additional sum of Rs. 1000/-. In directing additional remuneration, the learned Judge ought to have taken into consideration only the actual work turned out by the commissioner and not the interests involved in the suit.
While according to the plaintiff, the commissioner spent 24 hours according to the 1st defendant and the commissioner, he took' 46 hours. Even assuming that the version of the Commissioner is correct, he is, In my opinion, not entitled to such a large sum of Rs. 1350/-. The fact that the commissioner appointed is an advocate does not also entitle him to any differential treatment or claim an exorbitant fee. In the circumstances of the case, I am inclined to modify the order of the court below and fix an additional remuneration of Rs. 500/- as being reasonable.
7. The Civil Revision Petition is allowed to the extent specified above. There will be no order as to costs.