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Mangal Misir and anr. Vs. Ramlagan Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All65
AppellantMangal Misir and anr.
RespondentRamlagan Misir and ors.
Excerpt:
.....district judge rightly took strong exception to the proceedings of the leaned munsif about the appointment of commissioners, and, after pointing out that it is not open to a court to issue a second commission when one has already been issued,,unless there are good reasons for believing that the report of the first commissioner is not fit to be relied upon, ignored the reports of the second, third and the fourth commissioners and proceeded to decide the case on the evidence on the record. on a consideration of the evidence he held that the plaintiffs failed to prove that the two clumps in dispute were on plot no. he contends on the authority of the decisions of the madras high court noticed above that, in view of the orders passed by the trial court for the appointment of subsequent..........no. 104 which belonged to them. the trial court, with a view to find out the situation of the two clumps, appointed an amin to make the necessary measurements and submit his report on the point. the amin executed the commission issued to him. he reported that both the clumps were on the boundary line of the two plots mentioned above. the defendants then filed an application on the 23rd april 1928. (the application is paper no. 176-c upon the record). in the application all that was stated was that the amin, to whom commission was issued by the court, was not the amin for the circle in which the bamboo clumps in dispute were situate, and that his report was manifestly wrong and, therefore some vakil should be appointed a commissioner. no reasons, good, bad or indifferent, in support of.....
Judgment:

Iqbal Ahmad, J.

1. This case illustrates in a remarkable degree the extent to which the salutary provisions as to the appointment of commissioners contained in Section 75 and Order 26, Rule 9, Civil P.C., in consequence of the disregard of the provisions of Clause (3), Rule 10, Order 26, are liable to be abused with ruinous result to the litigants. Once a Commissioner has been appointed and has submitted his, report, the Court has no right, unless' it comes to the conclusion that the Commissioner has so misconceived his fundamental duties as to render his report useless, to appoint another Commissioner. There is no warrant in law for the appointment of a succession of Commissioners unless the Court for reasons to be recorded by it, is of the opinion that the report of the Commissioner appointed by it, and objected to by one party or the other, is wholly valueless, and further elucidation of the matter in dispute between the parties is necessary by the appointment of a more competent Commissioner. If objections to the report of a Commissioner appointed by the Court are taken by one party or the other, the Court, must, before giving a go-by to that report, hear and decide the objections in open 'Court, and unless it comes to the conclusion, for reasons to be recorded by it, that the report is wrong and worthless as a piece of evidence in the case, it is not permissible to appoint another Commissioner. The contrary practice, as pointed out by the Madras High Court in the case of Thottamma v. Subramaniyyan A.I.R. 1922 Mad 219

encourages a haphazard and careless selection of Commissioners. It subjects parties to unnecessary and avoidable expense, and encumbers the record with useless papers.

2. Such a practice has also been severely condeemed by a learned Judge of this Court in the case of Nand Kishore v. Ganesh Prasad : AIR1929All446 . Another learned Judge of this Court while admitting the present appeal and issuing notice to the respondents made the following observation:

The habit, which is so prevalent in the lower Courts of appointing a succession of Commissioners, constitutes a public scandal, and I entirely agree with what the lower appellate Court has said on the point. If I allow notice to go, it is principally with a view to know the procedure adopted by the trial Court, and unless that procedure can be justified by something appearing further, it is condemnable by this Court.

3. The dispute in the suit giving rise to the. present appeal was with respect to two bamboo clumps and the value of the subject matter of the suit was Rs, 105. The plaintiffs' case was that the clumps were owned and possessed by them and were on their plot No. 105, whereas the contesting defendants alleged that the clumps were planted by their ancestors and were on the adjoining plot No. 104 which belonged to them. The trial Court, with a view to find out the situation of the two clumps, appointed an Amin to make the necessary measurements and submit his report on the point. The Amin executed the commission issued to him. He reported that both the clumps were on the boundary line of the two plots mentioned above. The defendants then filed an application on the 23rd April 1928. (The application is paper No. 176-C upon the record). In the application all that was stated was that the Amin, to whom commission was issued by the Court, was not the Amin for the circle in which the bamboo clumps in dispute were situate, and that his report was manifestly wrong and, therefore some Vakil should be appointed a Commissioner. No reasons, good, bad or indifferent, in support of the assertion that the Amin's report was wrong, were embodied in the application and the Court passed the following order on the said application:

Allowed. Issue commission to B. Kesho Roy. Applicant to pay Rs. 15 as his fee and arrange for his conveyance. Commissioner 'should submit his report before the 1st May 1928.

4. The order noted above makes it abundantly clear that the Court did not for a moment pause and consider the accuracy or otherwise of the assertion of the defendants that the Amin's report was wrong and as such it was necessary to appoint a new Commissioner, The order leaves the impression on one's mind that the Court concerned was under the impression that, so long as a party to a suit is prepared to provide money on account of the fee of a Commissioner to be newly appointed, it is not the duty of the Court to apply its mind to the report of the Commissioner previously appointed by it with a view to decide whether there is any justification for the appointment of a subsequent Commissioner. On the same date the parties closed their evidence and the Court ordered the arguments to be heard after the second Commissioner appointed by it had submitted his report. B. Kesho Roy, the second Commissioner, submitted his report on the 1st May, 1928. He was of the opinion that one of the clumps existed on plot No. 104 and the other was on the boundary line between plots 104 and 105. The plaintiffs then filed an application on 4th May, 1928, praying for the appointment of a third Commissioner. (This application is paper No. 82-C upon the record). In the application it was stated that the spot, which was regarded by B. Kesho Roy as a fiixed point, and from which spot he commenced his measurements, was not a fixed point and that he had not measured plot No. 105. It is clear that these allegations are as vague as any allegations can be, and certainly do not constitute- such objections to the validity of the report as would justify the supersession of the report without an investigation into the accuracy or otherwise of the allegations made in the application. The Court-passed the following order on the said application:

Plaintiffs challenge the Commissioner's report and pray for another Commission. Application 820 allowed. Put up on 7th May 1928 for argument.

5. The Commissioner appointed this time was a gentleman named Maulvi Abdul Hamid, a practising lawyer. The fee allowed to him was a sum of Rs. 15 and the plaintiffs further had to arrange for his conveyance. On 22nd May 1928, Maulvi Abdul Hamid submitted his report. His conclusion was that both the clumps were on plot No. 105. Then the defendants on 22nd May 1928, possibly encouraged by the previous orders of the Court in the matter of appointment of Commissioners, filed an application praying for the appointment of a fourth Commissioner, and suggested that one B. Kisho Roy a senior vakil should be appointed (This application, is paper No. 87-C on the record). The socalled reasons embodied in this application for the prayer contained therein were more or less the same as embodied in the. plaintiffs' application dated. 4th May1928 with the addition that the report of Maulvi Abdul Hamid was based on inexperience. The Court disposed of this application the same day with the following order:

Report has been filed, 87-C the objection is rejected for being frivolous. It is not for the parties to suggest names of Commissioners as done in the application 87-C. Put up for argument.

6. On the passing of this order, it must have been clear to everybody concerned, that the plots in controversy were not to be graced any more by the presence of fresh Commissioners, and that all that remained was for the Court to hear arguments and to pronounce judgment. But this was not to be. On 24th May 1928, the Court again took up the application 87-C for disposal and passed an order directly contradictory to the one passed by it on 22nd May 1928. The order was as follows:

Issue commission to Ram Sagar Singh. Applicant to deposit Rs. 20 as his fee and arrange for his conveyance, Commissioner to submit his report on or before 6th June 1928.

7. It appears that B. Ram Sagar Singh did not agree to execute the commission and the Court on 16th June 1928 appointed one B. Hari Shankar Lal, a vakil as Commissioner. He submitted his report either on or before 6th July 1928. His report was that one clump was on plot No. 105 and the other on the boundary line of the two plots. For some reason or other, nothing further was done in the case till 3rd November 1928. On that date arguments were heard and the judgment was delivered by the Court on 6th November 1928. It is clear that by the lapse of time between 23rd April 1928, the date on which the parties concluded their evidence, and 3rd November 1928, when the arguments were heard, all the impressions that the trial Court would have formed about the demeanour of the witnesses examined in the case must have died away, and thus the Court in deciding this case was deprived of that valuable assistance which the trial Courts receive by seeing and watching the. witnesses, during the course of their examination, in the Avitness box. But this disadvantage, that obviously is directly attributable to the laxity of procedure that marks and characterizes the orders about the appointment of Commissioners passed by the trial Court, dwindles into insignificance, when one considers the lamentable Avaste of money and public time in consequence of the abdication by the trial Court of its function of deciding the objections to the report of a particular Commissioner before appointing another Commissioner. In a suit valued at Rs. 105 a sum of Rs. 50 was paid as fee to the Commissioners, all of whom were practising lawyers. Each of the three Comissioners received about three to four times of the taxable fee in the case. Over and above this sum of Rs. 50 the parties had to pay the conveyance charges of the three Commissioners. In short, the expenditure on the Commissioners themselves was in the neighbourhood of 2/3rd of the value of the subject-matter of the suit. This, to say the least is startling.

8. The state of affairs disclosed above, obviously, gives rise to the following questions: (1) Had the. trial Court in mind the provisions of the Civil Procedure Code as regards the appointment of Commissioners and the treatment of their reports, or did it take the trouble to refer to those provisions before passing the orders noted above (2) If it was aware of those provisions, did it apply a judicial mind to the investigation of the socalled objections, to the reports of the Commissioners, formulated in the series of applications that were let loose in Court indiscriminately by. the pleaders of the parties (3) If it did bring to bear on a consideration of the applications a judicial mind, why did it refrain from recording its reasons for the appointment of fresh Commissioners (4) Did it consider that, so long as a litigant is ready and willing to pay the costs for the issue of a fresh commission, the Court is justified in indiscriminately appointing one vakil after another as Commissioner (5) Did it consider for a moment the consequent embarrassment that is bound to be caused to the Courts themselves by the appointment of a series of Commissioners ?

9. I would better leave these questions unanswered, for the simple reason that, in my opinion, the answers to these questions are beset with doubts of varying intensity. The embarrassment that was caused to _ the learned Munsif by the. various conflicting reports of the Commissioners is manifest from his judgment. To reconcile the reports of all the four Commissioners was not only difficult but impossible and, therefore, he never made that attempt, but then he proceeded to make what is commonly known as 'the best of a bad bargain.' He put: the reports of the four Commissioners before himself and proceeded to determine, so to say, whether the plaintiffs or the defendants has secured the majority of votes so far as the Commissioners were concerned, and eventually arrived at a conclusion that was at variance with the reports of the first, second and the fourth Commissioner and accepted the report of Maulvi Abdul Hamid, the third Commissioner, who, it is interesting to note, was characterized as 'in experinced' in the application paper No. 87-C. He did not assign any reason whatsoever for preferring the report of Maulvi Abdul Hamid to the report of the other three Commissioners. The report of Maulvi Abdul Hamid being in. the plaintiff's favour, the learned Munsif decreed the plaintiff's suit.

10. The defendants went in appeal to the District Judge. The learned District Judge rightly took strong exception to the proceedings of the leaned Munsif about the appointment of Commissioners, and, after pointing out that it is not open to a Court to issue a second commission when one has already been issued,, unless there are good reasons for believing that the report of the first Commissioner is not fit to be relied upon, ignored the reports of the second, third and the fourth Commissioners and proceeded to decide the case on the evidence on the record. On a consideration of the evidence he held that the plaintiffs failed to prove that the two clumps in dispute were on plot No. 105, and accepted the defendants' case that the clumps in dispute were planted by the defendants on their own land and belonged to them. Accordingly, he reversed the decree of the trial Court and dismissed the plaintiffs' suit.

11. In the second appeal before me the learned Counsel for the appellants argued that the learned Judge of the lower appellate Court was wrong in ruling out the reports of the subsequent Commissioners and relying upon the report of the first Commissioner. He contends on the authority of the decisions of the Madras High Court noticed above that, in view of the orders passed by the trial Court for the appointment of subsequent Commissioners, it must be assumed that the Court regarded the work done by each preceding Commissioner to be so bad as to entail the rejection of his report and, accordingly, the report of the first Commissioner should not have been taken into consideration by the lower appellate Court, and that only the report of the last Commissioner, viz., of B. Hari Shankar Lal, should have been taken into consideration. I am unable to agree with this contention. I cannot, in the circumstances of the present case that have been detailed above, hold that the order for the appointment of each successive Commissioner was due to the non-acceptance by the learned Munsif. of the report of each preceding Commissioner. I am clear that the learned Munsif never paused to consider the propriety or otherwise of the various objections levelled against the reports of the Commissioners appointed by him, nor did he, by appointing a new Commissioner, intend to reject the report of the previous Commissioner. The fact that it is so is demonstrated by his freely drawing upon all the four reports in the course of his judgment. The lower appellate Court was rightly of the opinion that there were no valid reasons for holding that the Amin, who was the first Commissioner, had either misconceived his duties or had not faithfully discharged the commission entrusted to him. The finding recorded by the lower appellate Court is a finding on a question of fact and is based on legal evidence, and, accordingly, is binding on me in second appeal. For the reasons given above, I dismiss this appeal with costs including in this Court fees on the higher scale.


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