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Maroli Achuthan Vs. Kunhipathumma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 915 of 1964
Judge
Reported inAIR1968Ker28
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rules 9, 10 and 18
AppellantMaroli Achuthan
RespondentKunhipathumma
Appellant Advocate V.R. Krishna Iyer and; K. Raghavan Nair, Advs.
Respondent Advocate V. Khalid,; B. Moosakutty and; C. Ummer, Advs.
DispositionPetition allowed
Cases ReferredNarayana Dossjee v. Board of Trustees T. T. Devasthanams
Excerpt:
.....if he (the commissioner) is an experienced man with knowledge of the nature of the lands and the field from different types of trees his estimate based on his experience would be acceptable evidence unless contradicted by more reliable expert or other..........9, 10 and 18 of the civil procedure code order 26, rules 9, 10 and 18 read as follows:order 26, rule 9: commissions to make local investigations:-- 'in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matterin dispute, or of ascertaining the market-value of any property, or the amount of any mesnt profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court: provided that, where the state government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.' order 26, rule 10: procedure of commissioner:--'(1) the commissioner, after such local.....
Judgment:
ORDER

Krishnamoorthy Iyer, J.

1. Defendant is the revision petitioner and the revision petition is directed against the order of the Court below dismissing the petition filed by the defendant to set aside the Commission report on the ground that the order issuing the Commission and the investigation by the Commissioner were without notice to him.

2. The suit filed on 25-5-1962 is for mandatory injunction to fill up certain pits alleged to have been dug in the plaint property The plaintiff filed R.I.A 1090 of 1982 on 1-6-62 for the issue of a commission to prepare a plan of the property, to mark the pits in the property and to give an estimate of the expenses necessary to restore the property to its original condition The application was granted by the learned Munsif on 8-6-1982 without notice to the defendant. The Commissioner visited the property and conducted the investigation on 13-6-1962, also without notice to the defendant and filed his report in court.

3. The contention raised by the learned counsel for the revision petitioner was that the report of the Commissioner is inadmissible in evidence and cannot be acted upon in view of Order 26. Rules 9, 10 and 18 of the Civil Procedure Code Order 26, Rules 9, 10 and 18 read as follows:

Order 26, Rule 9: Commissions to make local investigations:--

'In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matterin dispute, or of ascertaining the market-value of any property, or the amount of any mesnt profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.'

Order 26, Rule 10: Procedure of Commissioner:--

'(1) 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.

(2) Report and depositions to be evidence in suit. -- Commissioner may he examined in person:--

The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but 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 has made the investigation.

(3) Whereas the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made its it shall think fit.'

Order 26, Rule 18: Parties to appear before Commissioner :--

'(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 no! so appear, the Commissioner may proceed in their absence.'

4. A single Judge of the Madras High Court in Latchan v. Rama Krishna, AIR 1934 Mad 548 had to consider the validity of a commission report prepared in violation of Order 26, Rule 18, C.P.C. The facts were that an order for the issue of a commission was passed without notice to the defendant and no notice was also given to the defendant to he present at the time of investigation by the commissioner in the property. Cornish, J. observed thus:

'It must be remembered that Rule 10(2), Order 26, Civil P. C., makes the report of the Commissioner evidence in the suit. Therefore it is of importance that the report should no! be founded on representations made to the Commissioner, or on matters brought to his notice by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that I think this alone would besufficient to justify the interference of a Revision court. But there is Rule 18, Order 26 which says that when a commission is issued under this order the court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Sub-rule (2) of Rule 18 says that where all or any of the parties do not so appear the Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. There is no power in the Court to issue an ex parte commission. It has been suggested that an emergency excused the order of the District Munsiff, I think that there was no more emergency on 29th July than there was on 22nd July when the first petition was filed; but an emergency could not absolve the District Munsiff, from complying with Rule 18.'

5. There is another decision of the Madras High Court in In re, P. Moosa Kutty AIR 1S53 Mad 717. The facts were that the application for the issue of a commission for local investigation under Order 26, Rule 9, C.P.C. was ordered without notice to the defendant and the commissioner at the spot questioned the defendant also who was present there. Subsequent to the filing of the report by the Commissioner, the defendant filed a revision petition questioning the order appointing the commissioner passed ex parte on the ground that it is opposed to the provisions of Order 26, Rule 18, C.P.C, The objection raised was overruled by Ramaswami. J in the following terms:

'The net result of this analysis is that there is no provision under Order 26, Rule 9, C.P.C. that a commission could be issued only after notice has been issued to the defendant and secondly, that Rule 18 cannot bear the interpretation which is sought to be put upon it by the learned Advocate for the petitioner and that as a matter of fact in this case the defendant had notice and participated in the commissioner's enquiry.'

6. The legal validity of a Commissioner's report when there was no notice issued to the defendant before passing the order appointing the Commissioner or before the Commissioner visited the property for investigation was considered by Joseph, J. in V. P. Veerabhadran Pillai v. A. P. Bhagavathi Pillai, 1954 Ker I.T. 324. The headnote of the decision is stated thus:

'It is improper to get commissioner reports behind the back of one of the parties to a litigation. A decision based on such a report is unsustainable '

7. In the case before us the order for the issue of a commission under Order 26, Rule 9, C.P.C. for local investigation was passed ex parte without issue of notice to the defendant. It was not contended before us on behalf of the revision petitioner that the report of the commissioner has to be set aside because of the absence of notice to the defendant before the passing of the order for the issue of commission under Order 26, Rule 9, C.P.C. The only objection related to the invalidity of the report filed by the Commissioner on the ground that Order 26, Rule 18, C.P.C. was violated.

8. The object of local investigation under Order 26, Rule 9, C.P.C. as stated in Amulya Kumar v. Annada Charan, AIR 1933 Cal 475 is not so much to collect evidence which can he taken in court but to obtain evidence which from its very peculiar nature can only be had at the spot. Order 26, Rule 9. C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed. There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission. In emergent cases it is necessary for the court to pass an order issuing commission without ordering notice. In the defendant also. An order for the issue of a commission for local investigation without issue of notice under Order 26, Rule 9, cannot be characterised as without jurisdiction.

That this is the only possible view is also clear from the wording of Order 20, Rule 18, C.P.C. which insists on notice to the parties to appear in person or by their agents or pleader in the property at the lime of investigation. Notice to the parties is made compulsory only before the investigation is done by the Commissioner. If necessary we are pre-pared to hold that under Order 26, Rule 9. It is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance.

9. We shall now consider the legal effect of the violation of Order 26, Rule 18. C.P.C. This rule, which is a general provision applicable to commission issued under Order 26, whatever may be the purpose for which it is issued, lays down that the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders. The rule further authorise the Commission where all or any of the parties do not appear to proceed in their absence. Order 26, Rule 18 contemplates a situationafter the appointment of a Commissioner and not before the commission is issued Order 26 Rule 10(1) C.P.C. provides that 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.

Order 26, Rule 10 Sub-rule (2) states that the report and the evidence taken by the Commissioner shall be evidence in the suit. The principle behind Order 26, Rule 18 is obvious Order 26, Rule 10(1) authorises the Commissioner to take evidence regarding those matters which he is competent to investigateand reduce the same in writing and file thesame along with his report. It is a principle of natural justice that it is only evidence taken in the presence of a party that could be used against him. It is for this reason that Order 26. Rule 18 contemplates an opportunity to be given to the parties to be present before, the Commissioner in the property at the time of investigation. In Ramakka v. Negasam ILR 47 Mad 800 at p 808--(AIR 1925 Mad 146 at pp. 148-149) Venkatasubba Rao, J. said thus:

'The contention that the Commissioner was not justified in obtaining information in the absence of the parties must be upheld. The court is not entitled to act on information received in the absence of the parties, nor can it base its judgment on its own knowledge of the facts. The law on this subject is well settled Lord Langdale. M. R., observes in Harvey v. Shelton. (1844) 7 Beav., 455 = 49 ER 1141 .

'In every case in which matters are litigated, you must attend to the representation made on both sides, and you must not, in the administration of justice, in whatever forum, whether in the regularly constituted Courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decision of the Judge, which means are not known to the other side.''

10. Even apart from the principles underlying Order 26, Rule 18, the said provision also is imperative in nature. The presence of the parties is considered imperative by the very provision contained in Order 26, Rule 18. C.P.C. The learned counsel for the revision petitioner contended before us that where the court has not by a specific order directed the parties to appear before the Commissioner any notice by the Commissioner himself to the defendant to appear before him in the property at the time of the investigation will not be sufficient We are unable to accept this extreme contention raised by the learned counsel for the revision petitioner A technical interpretation of Order 2ft. Rule 18, C.P.C. will no doubt support the position taken up by the learned counsel for the revision petition.

In a bench decision of the Andhra Pradesh High Court in Narayana Dossjee v. Board of Trustees T. T. Devasthanams, AIR 1959 Andh Pra 64, Subba Rao. C. J., as he then was, observed that a Commissioner appointed under Order 26, Rule 9, for investigation is in effect a projection of the Court appointed for a particular purpose who is also bound by the fundamental principles governing judicial procedure, Therefore, even though there was no direction by the court directing the parties to appear under Order 26, Rule 18, C.PC if notice is issued to the parties by the commissioner directing them to appear in connection with the investigation to be done that will be substantial compliance with the provision of Order 30, Rule 18 C.P.C. In the case before us there was no direction by the court. The commissioner also did notissue any notice in writing calling upon the defendant to appear before him in the property on the date on which he visited the same.

The learned Munsiff observed that the Commissioner stated that before inspecting the property he went to the defendant's house and on an enquiry he found that the defendant was not there. This does not satisfy the requirements of Order 26, Rule 18. Under Order 26, Rule 18, C.P.C there must be a direction by the court of which notice has to be given to the parties or at least the commissioner should issue notice to the parties calling upon them to appear on the property on the date he proposes to visit the property for investigation. A violation of Order 28, Rule 18, will not therefore justify the reception of the report us part of the evidence under Order 26. Rule 10, Sub-rule (2) C.P.C. It has to be mentioned that the non-observance of the provision contained in Order 20, Rule 10 will not make the report totally inadmissible in evidence it is open to the plaintiff in such cases if he wants to rely on the report to examine the Commissioner who prepared the same as a witness. In this connection it is necessary to quote again the observations of Subba Rao. C. J. in AIR 1958 Andh Pra 64. The learned Chief Justice observed.

'If he (the Commissioner) is an experienced man with knowledge of the nature of the lands and the field from different types of trees his estimate based on his experience would be acceptable evidence unless contradicted by more reliable expert or other evidence. But the information gathered by him behind the back of the parties is not evidents in the case. The fact that some of the conclusions of the Commissioner were based on no evidence or that he relied upon enquiries made by him behind the back of the parties, would not deprive the entire report of its evidentiary value. The Court may rely upon such part of the report which is not based upon such irrelevant material and also on other evidence to sustain the conclusions of the Commissioner.'

The report of the Commissioner may be relied on after examining the Commissioner not as report forming the basis of an investigation contemplated by Order 26, Rule 9, but as corroborating the evidence of inspection conducted by the Commissioner The view by the lower court therefore that the report can be treated as evidence in the suit under Order 26, Rule 10, Sub-rule (2), C.P.C. is not correct and has therefore to be set aside. In the result, we set aside the order of the court below and allow the revision petition subject to the observations made above. We make no order asto costs.


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