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Kalandi SwaIn and ors. Vs. Braja Kishore Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 653 of 1979
Judge
Reported inAIR1980Ori98
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 7 - Order 26, Rule 9
AppellantKalandi SwaIn and ors.
RespondentBraja Kishore Dass and ors.
Appellant AdvocateS.K. Dey and ;Y. Mohanty, Advs.
Respondent AdvocateR. Ch. Mohanty, ;J. Das, Advs. (for Nos. 1 to 18) and ;G.B. Patnaik, Govt. Adv. (for Nos. 19 to 21)
DispositionRevision allowed
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - order 39 appears in the chapter on temporary injunctions and interlocutory orders',and rule 7 thereof is placed under the sub-heading 'interlocutory orders',whereas order 26 is under the chapter on 'commissions',and rule 9 onwards thereof are directly under the heading 'commissions to make local investigations'.as stated above, the application for deputing the pleader-commissioner was made under rule 9 of order 26 and that application was not opposed by the plaintiffs (opposite parties 1 to 18 herein). considering all facts and circumstances of the case and on hearing the counsel appearing for both the parties i am satisfied that the pleader-commissioner had been deputed under rule 9 of order 26, c. in disposing of that matter..........which the pleader-commissioner had been deputed. the observation made by b.k. ray, j. on a similar matter reported in (1978) 46 cut lt 1, is as follows :--'after the commissioner submits his report, the trial court will first of all decide if the report submitted will 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.'i.....
Judgment:
ORDER

S. Acharya, J.

1. The defendants in the suit are the petitioners in this Civil Revision.

2. The defendants filed a petition on 20-11-79 asking the court below to at first hear the parties regarding the acceptance or non-acceptance of the pleader-commissioner's report submitted in this case before proceeding to hear the suit on merits. The court below has rejected the said petition stating that the said petition was filed at a late stage; the pleader-commissioner's report can be treated as a piece of evidence at the hearing of the case; and it is not necessary to at first hear the parties on the question of acceptance of the pleader-commissioner's report and decide that question before proceeding to hear the suit on merits. Hence this Civil Revision.

3. Mr. Dey, the learned counsel for the petitioners, submits that the court was not justified to hear the suit on merits without at first recording an order either accepting or refusing to accept the pleader-commissioner's report.

Admittedly, the pleader-commissioner's report is in favour of the petitioners. After the said report was filed in the court, the plaintiffs (opposite parties herein) filed objection against the acceptance of the same in evidence. Undisputedly, that objection was never taken up for hearing and that matter was never disposed of and is pending till now. The petition for deputing the pleader-commissioner was made by the defendants under Rule 9 of Order 26, C. P. C. and that petition was not opposed by the plaintiffs, as is specifically mentioned in the order dated 22-2-77 of the trial court. The plaintiffs filed objection to the report of the pleader-commissioner on 12-7-77, but that objection was never taken up for hearing. Sub-rule (3) of Rule 10 of Order 26, C. p. C. says that where the court is. for any reason, dissatisfied with the proceedings of the commissioner, it may direct such further enquiry to be made as it shall think fit. Therefore, this Sub-rule (3) postulates that the court should at first make up its mind regarding acceptance or otherwise of the pleader-commissioner's report submitted to the court in accordance with the order of that court, for if the court is dissatisfied with the proceedings of the commissioner or his report it may reject the same, in which case one of the parties to the suit may again move the court to take out a fresh commission for the proper assessment and investigation of the matter for which the pleader-commissioner had been deputed. The observation made by B.K. Ray, J. on a similar matter reported in (1978) 46 Cut LT 1, is as follows :--

'After the commissioner submits his report, the trial Court will first of all decide if the report submitted will 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.'

I am in agreement with (he above observation.

4. Mr. Mohanty, the learned counsel for the opposite parties, contends that the said observation was made in respect of a commissioner's report submitted under Rule 10 of Order 26, C. P. C., but the commissioner's report in this case is not under that provision but it is under Rule 7 of Order 39, C. P. C. as the purpose of deputing the commissioner was only to inspect thesuit site and that being so the said report is not to be treated as evidence in the case so long one of the parties does not prove the same in accordance with law, and hence it was not necessary for the court either to accept or reject it before actually proceeding to hear the suit on merits. In this connection Mr. Mohanty states that Sub-rule (1) (a) of Rule 7 of Order 39, C. P. C. provides inter alia for 'inspection' of any property which is the subject-matter of the suit, or as to which any question may arise therein, but under Rule 9 of Order 26, C. P. C. the court, when it deems fit, directs a local investigation which, according to Mr. Mohanty, was not the direction in this case.

The dictionary meaning of the word 'investigation' is :--

'Act of examining; ascertainment of facts; sifting of materials; search for relevant data.'

The dictionary meaning of the word 'inspect' is :--

'To examine; to look into; to look at narrowly, officially, or ceremonially.'

'Inspection' is 'the act of inspecting or looking into matters; careful or official examination'.

The context in which the word 'inspection, appears in Rule 7, it is evident therefrom that provision for the same has been made mostly for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason that can be known by the court if and when desired or required. But the purpose of deputing a pleader-commissioner under Rule 9 of Order 26 if for ascertaining, collecting or elucidating facts in respect of any matter in dispute and other things as mentioned in that Rule, after proper scrutiny, examination and sifting of materials. That is why such a report is automatically admitted in evidence and forms a part of the record, whereas an inspection report under Order 39, Rule 9, submitted on mere looking into matters, is not treated that way or given that importance.

On the facts of this case it is quite evident that the court directed the pleader-commissioner to go to the spot for ascertainment of facts on proper examination and sifting of materials, for elucidating or for clarifying matters in dispute so that the report submitted by him can be treated as evidence and the court can utilise the same while disposing of thesuit. So the direction was for proper investigation and not for mere inspection, and hence the appointment of the pleader-commissioner was under Rule 9 of Order 26 and not under Rule 7 of Order 39, C. P. C.

Order 39 appears in the Chapter on Temporary Injunctions and Interlocutory Orders', and Rule 7 thereof is placed under the sub-heading 'Interlocutory Orders', whereas Order 26 is under the Chapter on 'Commissions', and Rule 9 onwards thereof are directly under the heading 'Commissions to make Local Investigations'. As stated above, the application for deputing the pleader-commissioner was made under Rule 9 of Order 26 and that application was not opposed by the plaintiffs (opposite parties 1 to 18 herein).

Considering all facts and circumstances of the case and on hearing the counsel appearing for both the parties I am satisfied that the pleader-commissioner had been deputed under Rule 9 of Order 26, C. P. C. and the report of the pleader commissioner was submitted under Rule 10 of the said Order. That being so, in view of the previous decision of this Court oa such a matter, quoted above, it was the duty of the court below to dispose of the objection filed by the plaintiffs against the pleader-commissioner's report before actually taking up the suit for hearing OB merits.

5. The petition in question to dispose of that matter has of course been filed at a late stage, Mr. Dey submits that it was not for the defendants to ask the court to dispose of that matter; rather the plaintiffs, who had filed the objection against the said report, should have moved the court in proper time to dispose of that matter before taking up the suit for hearing. It is seen that the plaintiffs after filing the objection kept quiet over the matter and never pressed for the hearing of the said objection. If the said objection is not pressed the result is that the pleader-commissioner's report, which is evidence or record and is against the plaintiffs, will stand accepted. So, in the fitness of things, it was for the plaintiffs to ask the court to decide their said objection before actually proceeding to hear the suit, and the court also should have taken up that matter in proper rime. If on the filing of the defendants' petition the plaintiffs did not press their said objection the court should have accepted that report as final and proceeded thereafter to record other evidence in the suit. On the above considerations the defendants' delay in filing that petitionshould not have weighed with the court as one of the grounds to dismiss that petition.

6. Considering the above facts and the law on the subject I deem it just and proper to set aside the impugned order and direct the court below to at first dispose of the said objection filed by the plaintiffs in accordance with law within as short a time as possible on giving an opportunity of hearing to both the parties. In disposing of that matter the court should not give any latitude of adjournment to either of the parties and shall proceed to dispose of this matter as well as the suit as expeditiously as possible.

The Civil Revision is allowed accordingly. No costs.

The L. C. R. be sent back immediately.


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