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Harihar Misra Vs. Narhari Setti Sitaramiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 65 of 1964
Judge
Reported inAIR1966Ori121
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rule 10
AppellantHarihar Misra
RespondentNarhari Setti Sitaramiah and anr.
Appellant AdvocateR.N. Misra, Adv.
Respondent AdvocateP.V.B. Rao, Adv.
DispositionPetition allowed
Cases ReferredAshutosh v. R. C. Dey
Excerpt:
.....(2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but the learned subordinate judge would fix up a date calling upon the parties to lead such evidence as they like......of a commissioner for making the valuation of the suit property and another for taking up the valuation question and court-fee matter as a preliminary issue. the case had been transferred to the learned subordinate judge, who appointed an overseer commissioner to estimate the market value of the suit site and the superstructures standing on it. the commissioner submitted his report on 4-11-1963. the suit had been adjourned to 8-11-1963 for filing objections. on the latter date, no objections were filed. plaintiff was absent. advocate for the defendants had no objection to the report of the commissioner which was accepted. the learned subordinate judge directed the plaintiff to take steps for amendment of the plaint and to pay the deficit court-fee in light of the valuation, given by.....
Judgment:
ORDER

G.K. Misra, J.

1. Plaintiff valued Title Suit No. 57 of 1962 at Rs. 1000/-. Defendants filed written statements alleging that the value of the suit property was Rs. 10,000/-. On 18-9-1963 defendants filed two applications one for appointment of a Commissioner for making the valuation of the suit property and another for taking up the valuation question and court-fee matter as a preliminary issue. The case had been transferred to the learned Subordinate Judge, who appointed an Overseer Commissioner to estimate the market value of the suit site and the superstructures standing on it. The Commissioner submitted his report on 4-11-1963. The suit had been adjourned to 8-11-1963 for filing objections. On the latter date, no objections were filed. Plaintiff was absent. Advocate for the defendants had no objection to the report of the Commissioner which was accepted. The learned Subordinate Judge directed the plaintiff to take steps for amendment of the plaint and to pay the deficit court-fee in light of the valuation, given by the Commissioner. On 14-11-1963 advocate for the plaintiff filed an application. for recalling the order dated 8-11-1963. The learned Subordinate Judge dismissed this application holding that he had no power to review the order of his predecessor under Section 151, Civil Procedure Code, The civil revision has been filed against this order.

2. In course of hearing of the civil revision, a question arose whether the civil revision was against the order dated 23-12-1963 or the order dated 8-11-1963. The revision against the latter order was barred by limitation by a few days. I ignored the limitation and allowed the parties to argue the revision as it is was against the order dated 8-11-1963. The question for consideration is whether this order was correctly passed.

3. To appreciate the point it need be stated that the effect of the order dated 8-11-1963 is that the learned Subordinate Judge accepted the Commissioner's report as determinative of the question as to valuation of the suit. He did not allow any opportunity to the parties, to lead evidence de hors the Commissioner's, report. Mr. Misra challenges the correctness of this view.

4. Order 26, Rules 9 and 10, C.P.C. prescribed that a Commissioner be appointed for ascertainment of the market value of the property who shall submit his report together with the deposition given before him. Under Rule 9, the Court may issue a commission for ascertainment of the market value of the property. Under Rule 10, the Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him to the court. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. The court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he made investigation.

It would thus be manifest that Rule 10 does not make the report of the Commissioner as concluding the question of valuation. On the contrary, the rule gives clear indication that the report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit. When the parties filed no objection to the Commissioner's report, the court rightly accepted the report. Its acceptance by itself does not, however, mean that parties are precluded from challenging the evidence of the Commissioner or assailing the report by cross-examination of the Commissioner and the witnesses examined by him, or by giving any other evidence to countermand the effect of the Commissioner's report.

In AIR 1953 Pat 133, Ashutosh v. R. C. Dey, a Bench of the Patna High Court held that an order rejecting the objections or confirming the report of the Commissioner did not mean that the Court abdicated its functions and had decided a fact in issue solely on the report of the Commissioner, irrespective of other relevant evidence bearing on the question. The decision lays down the correct law.

5. As a result of the aforesaid discussion, the position would emerge as follows:

The Commissioner's report is accepted. But the learned Subordinate Judge would fix up a date calling upon the parties to lead such evidence as they like. It is open to them to cross-examine the Commissioner on that date. After going through the entire evidence on the issue of valuation, the learned Subordinate Judge would record a finding as to the value of the suit, and thereupon, if he finds the valuation of the suit would be increased call upon the plaintiff to amend the plaint and to pay up necessary court fee.

6. In the result, the revision is allowed. Parties would bear their own costs.


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