Dipak Kumar Sen, J.
1. The above partition and administration suit was instituted on the 24th Dec., 1974 by Biswanath Churiwalla, Pawan Kumar Churiwalla and Sonjoy Kumar Churiwalla against Chiranjilal Churiwalla. Sm. Bhagwati Churiwalta, Hem Chand Churiwalla, Bijay Kumar Churiwalla impleaded respectively as the defendants 1, 2, 3 and 4 claiming, inter alia, declaration of shares of the parties, partition by metes and bounds and allotment of the divided shares in two joint properties, namely, premises No. 1, Gobinda Dhar Lane, Calcutta and 12, Brojo Dulal Street, Calcutta.
2. The defendants filed their written statement in the suit.
3. On 13th May, 1981, on terms of settlement filed by the parties in Court, a preliminary decree was passed in the suit directing the joint properties to be divided into 15 equal shares. It was declared that the plaintiffs would jointly be entitled to l/5th and the defendants would be entitled to the balance 4/5th. Manindra Kumar Rose, Barrister-at Law, was appointed as the Commissioner of Partition. He was directed to partition the said properties by metes and bounds with power to allot compensation and to submit his return within ten months from the date of the decree.
4. The Commissioner, thereafter, walked over the joint properties and took symbolical possession thereof. At a meeting of the parties held on the 19th May 1981, a Chartered Engineer and Valuer was appointed by consent to survey and value the joint properties.
5. The Surveyor inspected the premises on or about the 4th Aug., 1981. He prepared plans of partition and sent the same for approval of the parties on or about the 14th Sept. 1981.
6. At a meeting held on the 23rd March, 1982, the parties approved the plan as prepared by the Surveyor but the plaintiff 1 and the defendant 3 stated that they would intimate their final decision in the matter through their Advocate. The Surveyor recorded that he would prepare the valuation report of each lot after the final decision of the parties was received.
7. The matter appears to have rested theretill 1983 when on an application of the plaintiffs made on or about the 23rd Sept., 1983 an order was passed on the 9th Nov., 1983, inter alia, extending the time of the Commissioner to file his return by six months.
8. The Commissioner of Partition held a meeting of the parties on the 2nd April, 1984. It was recorded in the said meeting, inter alia, as follows : --
'The Surveyor stated that the scheme of partition in respect of No. 1 Gobinda Dhar Lane has been prepared according to the best of his skill and ability. It cannot be divided into five equal shares. The defendants 1, 2 and 4 agreed to take a joint allotment and the plaintiffs and defendant 3 wanted to have separate allotment. The scheme of partition was prepared accordingly.
The Surveyor states that if the scheme of partition is approved then he will prepare valuation.
The Surveyor further states that the said property cannot be partitioned in any other way according to him.
The Surveyor states that the plaintiff Biswanath Churiwalla wanted that premises No. 1, Gobinda Dhar Lane, should be partitioned plinthwise dividing into five equal lots and a lot in the said front portion may be allotted to him.
The Surveyor states that the premises No. 1 Gobinda Dhar Lane cannot be partitioned in the way suggested by the plaintiffs.
Mr. N. K. Basu states that the scheme of partition as prepared by the Surveyor has been approved by his clients.'
9. On the 18th April, 1984 the Commissioner issued a notice to the parties, inter alia, as follows : --
'The minutes of the meeting dt. 2nd April. 1984 in the above matter has been served upon Mr. Sabyasachi Sen, Advocate for the plaintiff. But Mr. Sabyasachi Sen has not yet written to me expressing his client's views as to preparation of the valuation report by the Surveyor. The Surveyor has stated that if the scheme of partition is approved by the parties then he will prepare valuation report. The time for filing Commissioner's report will expire very shortly. I am calling a meeting of the parties on Wednesday. 25th April, 1984 at4.15 p.m. at the Bar Library Club (1st Floor) High Court, Calcutta to consider whether the Surveyor will prepare valuation report.'
10. The Advocate-on-record for the plaintiffs addressed a letter to the Commissioner dt. the 24th April, 1984, inter alia, as follows : --
'Please note that my clients are not approving the scheme of partition prepared by the Surveyor appointed herein inasmuch as the rear portion of the building No. 1, Gobinda Dhar Lane, Calcutta has been allotted to my clients, the major portion whereof is consisting of partition whereas the front portion has been allotted to the defendants in one room and thereby the interest of my client as one of the shareholders of the said property is being highly prejudiced.
Alternatively, I am instructed by my clients to suggest before you to ask the Surveyor to prepare a fresh scheme of partition whereby the property should be partitioned floorwise and/or horizontally and if it is done then and in that event there will be equitable distribution of the said property to the respective shareholders according to their shares as mentioned in the preliminary decree passed herein.
In the facts and circumstances I under instruction of my clients do hereby request you to ask the Surveyor not to prepare the valuation report on the basis of the purported scheme of partition as prepared by him inasmuch as the scheme of partition is not acceptable to my clients in any circumstances.'
11. The Commissioner held a meeting of the parties on the 25th April, 1984 where it was recorded, inter alia, as follows : --
'The Commissioner of Partition is directing the Surveyor to prepare the valuation report within a fortnight from date and also to make allotment to the best of his ability according to the share of the parties.
The Commissioner of Partition is directing Sri Sabyasachi Sen on whom is the carriage of proceedings to move the Hon'ble Court and obtain appropriate direction regarding that the scheme of partition prepared by the Surveyor is not acceptable by the plaintiffs. Mr. Sen will also place before the Hon'ble Court regarding the Surveyor's opinion that premises No. 1 Gobinda Dhar Lane cannot be partitioned in any other way. Mr. Sen shouldserve notices upon all the parties including the Surveyor before he moves the Hon'ble Court. Mr. Sen should also pray for extension of time to file Commissioner's report by at least six months. Such application is to be made on or before the 9th May, 1984.'
12. On or about the 28th Nov., 1984 the defendant 1 made an application in the suit praying, inter alia, for the following orders : --
'(1) The time to file the report by the Commissioner of Partition be extended by six months from the date of the order to be made herein;
(b) The carriage of proceedings of the suit be transferred to the defendant 1.
(c) Direction on the Surveyor and the Valuer to prepare the valuation report in accordance with the scheme of partition prepared by him in respect of the joint properties and to complete the partition expeditiously.'
13. It was alleged in this application, inter alia, that in spite of the directions given by the Commissioner in the meeting held on the 25th April, 1984 the plaintiffs did not take any steps in the matter for more than six months.
14. It was alleged further that the sole object of the plaintiffs was to delay the partition which was pending for over ten years. It was alleged that the plaintiffs neither accepted the scheme prepared by the Surveyor nor did they submit any alternative scheme. The defendants, it was alleged, had accepted the said scheme. It was alleged that due to the dilatory tactics adopted by the plaintiffs, the Commissioner of Partition could not complete his report though the period was extended from time to time. It was contended that the carnage of proceedings of the suit should be transferred to the defendant 1 and leave may be given to him to continue the said proceeding if the plaintiffs failed to take diligent steps.
15. Biswanath Churiwalla, the plaintiff No. 1, affirmed an affidavit on the 8th Jan. 1985 which was filed in opposition to the petition. Various objections were raised in the said affidavit against the partition plan prepared by the Surveyor. It was alleged that the suggestion of the plaintiffs for floorwise partition of premises No. 1, Gobinda Dhar Lane. Calcutta had not been given either'emphasis' or 'importance' by the Commissioner of Partition or the Surveyor and that there was no endeavour on the part of the Commissioner or the Surveyor to give shape to the said proposal.
16. The defendant 1 affirmed an affidavit on behalf of the defendants which was filed in reply to the aforesaid affidavit of the plaintiff 1. It was denied in the said affidavit that the suggestions of the plaintiffs for partition of the said premises No. 1. Gobinda Dhar Lane, Calcutta had not been considered by the Commissioner or the Surveyor. The Surveyor, it was alleged, had expressed his clear opinion that the said premises No. 1, Gobinda Dhar Lane, Calcutta could not be partitioned in any way except the one suggested by him.
17. The Commissioner of Partition and the Surveyor were not made parties to the said application. No notice of the said application nor a copy of the petition was served either on the Commissioner or the Surveyor. The application was heard in the absence of the Commissioner and was disposed of by an order dated the 25th Feb. 1985. The material part of the order is as follows : --
'By consent the Commissioner of Partition walked over the premises and by consent of the parties appointed Mr. S. K. De, Chartered Engineer & Valuer, to survey and value the suit properties. Mr. De prepared the plans and submitted the same to the parties for their approval. That was in the year 1981. Even today in the year 1985 the same could not be finalised and the partition could not be effected by the Commissioner of Partition by preparing his return. The time to file the return was extended for one year. Thereafter again an application was taken out for extending the period within which the Commissioner of Partition was to file his return. In spite of various extensions granted no progress has been made to the suit at all so far as the filing of the return and partition by metes and bounds to be made by the Commissioner of Partition.
In view of the inordinate delay of 10 years from the filing of suit and specially when five years have elapsed from the appointment of the Commissioner of Partition, this Court is of the view that instead of just as a matter of routine giving extension of time to the Commissioner of Partition to carry out the terms of the preliminary decree and instead ofremoving the Commissioner of Partition, a Joint Commissioner of Partition be appointed to carry out the work expeditiously. Mr. Pulak Chandra Das who is present in Court is appointed as Joint Commissioner of Partition with the hope that with his assistance at long last the directions of the preliminary decree could be carried out by the Joint Commissioners of Partition forthwith. It had been stated that one of the parties is 72 years of age. On a consideration of all these facts the Joint Commissioners of Partition will realise that until and unless the joint properties are partitioned expeditiously the parties may not see the fruits of the litigation.
Under the circumstances, both Mr. M. K. Bose and Mr. P. C. Das are directed to forthwith effect the partition. The time to file the return by the Commissioner is extended by three months on the understanding that no further extension would be granted.
The Joint Commissioners are directed to do the needful so far as the valuation of the properties are concerned. The prayer for transferring the proceedings from the plaintiffs to the defendants is left open. If the partition is not effected in the meantime this Court will consider passing such an order.'
18. The present appeal has been filed against the above order by the Commissioner of Partition with leave of Court.
19. The parties waived service of the notice of appeal. By consent filing of paper book was dispensed with, the undertaking given on that behalf was directed to stand discharged and the appeal was brought in the list to be heard along with the application. All the papers and records before the first Court were placed before this Court at the hearing.
20. It has been contended on behalf of the appellant that, as the Commissioner of Partition, the appellant had duly discharged his functions and there had been no laches, negligence or inaction on his part. None of the parties to the suit had or has any grievance against the Commissioner. Instead of transferring the carriage of proceedings to the defendant 1 as prayed for, the first Court by its order criticised the performance and conduct of the Commissioner without any grounds. The Commissioner was not given any opportunity to explain his conduct. It wassubmitted that the first Court was prejudiced against the Commissioner and proceeded with a bias.
21. It was submitted that the appellant was a practising Advocate of this Court of 30 years' standing and has acted as Commissioner of Partition in a number of suits. By appointing a Junior Advocate-on-record to act as Commissioner of Partition jointly with the appellant the latter has been humiliated and ridiculed. The appellant prayed that the order dt. 25th Feb., 1985 under appeal be modified or altered and the observations made against the appellant be expunged. It was further prayed that the appellant be discharged from further acting as Commissioner of Partition in the suit.
22. The plaintiffs and the defendants appeared in this appeal. It was stated on their behalf that no allegations had been made against the Commissioner of Partition before the first Court nor any allegation is being made against the latter in this appeal. Neither party wanted the Commissioner to be discharged. It was submitted that the parties had nothing to say in this appeal. It was submitted, in addition, on behalf of the defendants that no order should be passed in this appeal which might delay the partition further.
23. In the affidavit of Chiranjilal Churiwalla affirmed on the 4th April, 1985 filed in the appeal on behalf of the defendants a statement has been made that the application of the Commissioner made in this appeal was mala fide.
24. When called upon to support the said allegation, learned counsel for the defendants stand on instruction that the said allegations be treated as withdrawn.
25. This appeal being rather unusual we directed the appellant to serve notice of the proceeding to the Advocate General of the State, to whom we gave leave to intervene and make submissions, if necessary. The learned Advocate General has appeared in the appeal but no submission has been made by him.
26. The first point which struck us and which is required to be considered is whether the appellant is entitled to file the appeal. The appellant before us is admittedly not a partyto the proceedings in which the order under appeal has been passed. The appellant was not directed to appear nor given leave to intervene in the application in the first Court. Therefore, on record, the appellant is a total stranger to the proceedings.
27. Learned Counsel for the appellant cited a number of decisions in aid of the proposition that a person not a party to a proceeding may still be entitled to prefer an appeal from an order passed in such proceeding under certain circumstances. The decisions are considered hereafter.
28. Lindley L. J. observed In re Securities Insurance Company, reported in (1894) 2 Ch 410 as follows :--
'I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.
29. The above dictum has been accepted by some of our High Courts. In the Province of Bombay v. Western India Automobile Association, reported in AIR 1449 Bom 1-11. Chagla C, J. observed as follows : --
'But it is recognised that a person who isnot a party to the suit may prefer an appeal ifhe is affected by the order of the trial Court.provided he obtains leave from the Court ofAppeal. Therefore, whereas in the case of aparty to a suit he has a right of appeal, in thecase of a person not a party to the suit who isaffected by the order he has no right, but theCourt of Appeal may in its discretion allowhim lo prefer an appeal.'
30. The question came up before the Supreme Court in Nookala Setharamaiah v. Kotaiah Naidu. reported in : 1SCR153 . Shah J. in his judgment quoted the observations of Lindley L. J. ((1894) 2 Ch 410) (supra) with approval and noted that the said proposition has been accepted by the High Courts in India.
31. In Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Pvt. Ltd. (in liquidation), reported in : 3SCR247 it was observed by the Supreme Court that it was well settled that a person who was not a party to a suit might prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.
32. A Division Bench of this Court has also taken the same view in United Commercial Bank v. Hanuman Synthetics Ltd. reported in : AIR1985Cal96 .
33. Applying the law, which in our view stands settled by the above decisions, we hold that the present appeal which was filed by the appellant with leave of this Court is competent. We hold further that the appellant was entitled to prefer this appeal inasmuch as in the facts he had sufficient reasons to be aggrieved by the judgment under appeal.
34. Next to be considered is the question of expunging a part or parts of the judgment which the appellant contends are objectionable and improper. The question of expunction of observations in a judgment has come up before the Courts in India and we note the following decisions on the point which were cited at the Bar.
(a) State of Assam v. Rangu Muhammad reported in : (1968)ILLJ282SC . The Supreme Court observed in this case as follows : --
'The power to expunge is an extraordinary power and can be exercised only when a clear ease is made out.' In the facts of the case before it the Supreme Court did not expunge the impugned observations in the judgment of the High Court though it was observed that the learned Judge need not have made the said remarks. It was held that in making the said remarks the learned Judge did not act with such impropriety that the extraordinary power of expunction was required to be exercised.
(b) Guru Nanak University v. Mrs. Iqbal Kaur Sundhu reported in . In this case a Full Bench of the Punjab High Court observed as follows : -- 'For nearly half a century or more it has been the settled law within this Court that prejudicial observations should not he madeagainst a person who is neither a party nor a witness in the proceedings before a Court. In Benarsi Das v. Crown. AIR 1925 Lah 392(2) it was observed that it would amount to a denial of justice to allow adverse reflections upon the character of such a person to stand intact in a judgment. In this Court a Division Bench in Sardar Lal Singh Kang v. State, , while summing up the law, has observed that the need for caution in making strictures is even greater in the case of remarks against officials whose career is likely to be affected thereby. Therein it has been further held that no such remarks should be made unless they are based on legal material properly placed on the record and further an opportunity has been afforded to the person concerned to furnish an explanation thereto.......... the position is indeed more soin the civil jurisdiction and particularly in the limited sphere of the writ jurisdiction which, as we have already pointed out, ordinarily proceeds on the facts admitted on affidavits.'
35. In the facts of the case before the Full Bench the adverse observations of a learned single Judge made against the Vice-Chancellor, who was not a party to the proceedings were directed to be effaced from the records in the ends of justice.
36. Practice of this Court in partition suits is well settled that the party who has the carriage of the proceedings in the suit has to take the trouble of obtaining directions from Court, when the occasion or necessity arises, so that the partition is effected expeditiously.
37. The position of a Commissioner appointed in a partition suit is not the same as that of a Receiver. A Receiver appointed in a suit may and does come up before the Court on his own and obtain directions as and when necessary to protect the property entrusted to him. But where there is controversy between the parties, even a Receiver normally leaves it to the parties to bring the controversy before the Court for being adjudicated. The Commissioner in a partition suit discharging a quasi judicial function invariably leaves it to the parties to resolve their disputes by bringing the same before the Court.
38. It is obvious that without the cooperation of the parties it is not possible for a Commissioner to proceed with partition onhis own expeditiously or effectively. The Commissioner cannot proceed ex pane nor can he impose his own decision over that of the parties on any matter in controversy. If he chooses to proceed rough-shod for the sake of expedition, his efforts will be rendered infructuous, by the parties who may come up before the Court to set aside his decisions.
39. When partition is delayed, as occurs in most cases, it is futile to blame the Commissioner without examining the conduct of the parties. If the hands of the Commissioner are tied and pressure is sought to be put on him by refusing extension of time to file his return, it is not the Commissioner, but the parties who would be penalised. The same result would follow if a Commissioner is removed and a new Commissioner is appointed. There will be an inevitable loss of time before a new Commissioner can acquaint himself with the facts and features of the case and proceed afresh. The problem is not solved by increasing the number of Commissioners. It is not axiomatic that two Commissioners will proceed faster than one. The contrary is likely to be expected.
40. In the facts of this case, it appears that the Commissioner took the necessary steps which he could lake in the circumstances. It also appears that the plaintiffs had adopted dilatory tactics. The defendants though aggrieved, did not come before the Court till the defendant 1 applied to be transposed to the position of a plaintiff and have the carriage of proceedings in the suit. The defendants may have a legitimate grievance against the plaintiffs who were guilty of laches but they had no grievance against the Commissioner.
41. The learned Judge, it appears, ignored, overlooked and misappreciated the material facts and lost sight of the basic perspectives of a partition suit.
42. The judgment under appeal and the observations impugned therein to the extent they are adverse to the Commissioner arc misdirected, unwarranted, and to say the least were uncharitable particularly as the Commissioner was never given an opportunity to defend himself.
43. The judgment under appeal has been set out earlier. After scanning the same with some care we find it difficult to segregate anypart or parts thereof so that the same can be expunged. The language of the judgment cannot be said to be unforensic and the observations therein cannot be held to be tainted with that degree of impropriety as to merit expunction.
44. We shall be rendering sufficient justice to the appellant if we record our conclusion that the Commissioner had taken the necessary steps, that there had been no delay or laches or negligence on his part, that the parties had no grievance against him and to the extent as aforesaid vary and set aside the judgment under appeal.
45. The appellant has prayed that he should be discharged and relieved from further acting as the Commissioner of Partition. In the facts and circumstances we allow his prayer. We have, recorded earlier that the parties do not want the appellant to be discharged. It is made clear that the other Commissioner will continue. The appeal is disposed of as above. There will be no order as to costs.
46. The Commissioners and all parties to act on a signed copy of the minutes of this order on the usual undertaking.
Ajit Kumar Sengupta, J.
47. Iagree with the judgment delivered by my Lord as also with the order passed entirely. For myself I would like to deal in more detail with the background of the case and the allegations made by the appellant, a senior member of the Bar, who has come before us with a feeling of humiliation, in justice and persecution. This is necessary for the ends of justice.
48. The facts, the pleadings and the proceedings laid up to the present appeal have been set out in some detail in the judgment just delivered by my Lord and I do not propose-to recapitulate the same excepting to the extent it is necessary to deal with the contentions of the appellant. In the proceeding before us two affidavits have been filed, one by the plaintiffs and the other by the defendants. I would like to deal with the said affidavits. In the affidavit filed by the plaintiffs it has been categorically stated that there was no laches or negligence on the part of the appellant and that the plaintiff never made any such allegation against the appellant.
49. In the affidavit filed on behalf of the defendants it is however stated that the application of the appellant made in this appeal 'is a mala fide application and is notmaintainable in law. Parties are unnecessarily being harassed. If this appeal is allowed the partition proceeding will never come to an end the parties who are not at all aggrieved by the said order will unnecessarily be harssed.
50. The defendants who made the application before the Court of the first instance whereupon the order under appeal was passed did not make any allegation against the Commissioner of Partition at all. It is significant that though none of the prayers in the application made by the defendants was allowed, the defendants do not feel aggrieved with the order under appeal. It is difficult to understand why the defendants took the trouble of making the application in the suit at all. Was it made for a fun or frivolity? Learned Advocate for the defendants however on instruction has withdrawn the said allegations unconditionally and nothing more need be said except that I record my disapproval on the conduct of the defendants in making such allegations only for the purpose of bringing the same on record and not pressing the same at the hearing.
51. Learned Counsel for the appellant contended, inter alia, as follows : --
a) The parties did not make any allegations against the appellant acting as the Commissioner. There was no prayer for his removal nor any ground in the pleadings which would merit his removal. It was nobody's case that the appellant was inactive. Observations were made against the appellant in the order under appeal without looking into the records and in particular the minutes of the Commissioner and other correspondence had by and between the Commissioner and the parties.
b) The Learned Judge did not give the appellant any opportunity of being heard in his defence before criticising his conduct, there was denial of natural justice.
c) The observations in the judgment are derogatory in nature and without any factual basis. Such observations were made only with a view to ridicule and humiliate the appellant. The appellant has, in fact, been humiliated asa lawyer junior to him in profession has been appointed as a joint Commissioner and left in charge of the partition.
d) The order was passed with bias and prejudice against the appellant which is supported by the previous orders similarly passed by the same learned Judge against the appellant.I have given my anxious and careful consideration to the facts and materials on record. I have examined them objectively and dispassionately with utmost care and caution. The conclusion though unfortunate but unavoidable that flows from the facts on record is that the contentions made on behalf of the appellant are of substance and are not entirely unjustified.
52. A judgment or order is the judicial determination of the controversy before the Court. The terms 'judgment' and 'Order' in their widest sense may be said to include any decision given by a Court of question or questions at issue between the parties to a proceeding properly before the Court (See 22 Halsbury's Laws (3rd edition) p. 740). In this case the learned Judge did not decide the question or questions at issue between the parties. The order in this case is directed solely against the Commissioner of Partition. The order incorporates only the criticism of the conduct of the Commissioner of Partition and curiously enough none of the issues involved in the application was considered or decided. The learned Judge ignored or failed to take notice of the material facts, namely the plaintiffs had adopted dilatory tactics, the parties had not accepted the scheme of partition and that valuation report remained to be prepared. Unless the parties had accepted the scheme of partition and the valuation report was prepared thereafter, no return could be submitted by the Commissioner. I fail to understand why the main prayer i.e. for a direction on the Valuer to prepare a valuation report according to the scheme of partition was neither considered nor allowed particularly when the learned Judge intended to expedite the partition. The Commissioner had on more than one occasion called upon the parties to take necessary directions from the Court which resulted in the application by the defendant No. 1. When none of the parties, either in theapplication or in the affidavits made any allegation against the Commissioner of Partition, it is not understood how the learned Judge could put the blame squarely on the Commissioner of Partition and how the Commissioner could be held guilty for any delay or laches. The only operative part of the order is the appointment of a Joint Commissioner which none of the parties had asked for. That by itself cannot expedite the partition without other consequential directions on the parties. The delay, if any, was not attributable to the Commissioner of Partition. The delay is attributable to the parties to the proceedings, particularly the plaintiffs. The learned Judge assumed that the delay was due to laches or negligence on the part of the Commissioner of Partition. The records do not corroborate or justify the said assumption. The learned judge was not right in stating that various extensions were granted to the Commissioner of Partition. As a matter of fact, the Commissioner of Partition was given time initially for 10 months. Thereafter once the time was extended by 6 months by R. N. Pyne, 1 and the second extension was granted by the order under appeal for another 3 months. The order which would have expedited the partition was not passed. The Commissioner have been directed to do the 'needful' so far as the valuation of the properties is concerned. What is 'needful' is anybody's guess. In the above facts and circumstances, the finding of the learned Judge that the partition could not be effected even after 5 years from the date of appointment of the Commissioner because of the delay or inaction on the part of the latter is unsustainable and the observations and remarks of the learned Judge against the Commissioner of Partition are unwarranted, uncalled for, undesirable, uncharitable and unkind. The learned Judge failed to appreciate that the application was not for removal of the Commissioner of Partition. The order under appeal is beyond the scope of the application.
53. Even assuming there was any delay on the part of the Commissioner of Partition, a senior member of the Bar it was only proper that he should have been given an opportunity of being heard to explain his conduct before any order was passed. It is a well established principle of law that no one should becondemned unheard. It is also significant that no criticism has been made against the parties for the delay in completing the partition although the defendant 1 came with a positive case that the plaintiffs, on one pretext or the other, had delayed the termination of the proceedings. If the learned Judge was of the view rightly or wrongly that the Commissioner of Partition did not act expeditiously as he should have done in the matter, the learned Judge ought to have asked for an explanation from the Commissioner. The order blaming the Commissioner was passed without hearing him. No one should have a feeling that he was condemned unheard. It was all the more necessary to hear the Commissioner because the parties did not blame the Commissioner for the delay at all. Thus there has been a gross violation of the principles of natural justice in this case.
54. The learned Judge without considering the merits of the case and without giving any direction upon the parties only appointed a Joint Commissioner 'with the hope that with his assistance at long last direction of the preliminary decree would be carried out by the Joint Commissioner of Partition forthwith'. The Commissioner of Partition was not incapacitated by slackness or sickness, forgetfulness or inattentiveness. The appointment of a relatively junior member of the Bar as a Joint Commissioner with the said observations not only casts a serious reflection on the conduct and professional capacity of the Commissioner but also adds insult to the injury. The grievance of the appellant that such remarks or observations were made only to humiliate him has substance.
55. This is not the end of the story. The question involved in this appeal cannot be looked into in isolation. There are other incidents on which reliance has been placed by the appellant to substantiate the contentions raised in the appeal.
56. It is on record that in suit No. 1313 of 1958 (intituled Makhan Lal Sarkar v. Union of India) the appellant was appointed Padma Khastgir, J. as the Special Referee to lake accounts by the same learned Judge. An application for setting aside the said report by the Special Referee was disposed of by the same learned Judge by her judgment dt. 20thSept. 1978. The report was set aside on the ground, inter alia, that 'Mr. D.P. Mukherjee (learned advocate for the defendants in that suit) has also submitted that the Advocate-on-record of the plaintiff. Mr. B.N. Ghose, is a near relation of the Special Referee as such the report given in favour of the plaintiff be set aside in all fairness. We have gone through the records of the said suit and it appears that the relationship of the appellant with the Advocate-on-record of the plaintiff was not made a ground for impugning the report of the appellant. It is alleged by the appellant that no submission was made at the Bar as recorded in the judgment as noted above. In view of the seriousness of the allegations we called for the learned Counsel concerned and asked him whether he had brought to the notice of the Court the relationship of the appellant with the Special Referee and impugned the report on that ground. Learned Counsel categorically stated that the report was challenged on merits and no personal allegation was made against the Special Referee as recorded. If such submission had not been made by the learned Counsel nor any such ground was taken in the application for setting aside the report of the Special Referee, such a ground of personal bias of the Special Referee could not have been made out in the judgment unless the learned Judge was fully aware of the relationship between the appellant and the said Mr. B.N. Ghose. It is stated on oath by the appellant that the learned Judge bad personal knowledge of the relationship between the appellant and the Advocate-on-record of the plaintiff in that suit and that the learned Judge had imported her personal knowledge in the matter. If that be so, the learned Judge should not have appointed the appellant as the Special Referee in the first place, allowed the Special Referee to proceed with the reference and held 42 sittings without any objection from the parties and then set aside his report on, inter alia, this ground.
57. The next instance in Suit No. 805 of 1983 (intituled Union Bank of India v. City Engineering Company). In the said suit the Bank made an application for appointment of a receiver to take possession of the hypothecated and pledged goods, to make an inventory thereof and to sell the same. The appellant was appointed as the sole receiverover the goods involved in the suit by an order dt. 25th Jan. 1984 passed by R. N. Pyne J. by the said order the appellant as the receiver was also directed to take possession of the goods and make an inventory of the same, The application was finally disposed of by the same learned Judge by an order dt. 20th Nov. 1984. The learned Judge instead of directing sale of the goods, appointed two junior lady Advocates as joint receivers to make an inventory of the said goods without discharging the Receiver previously appointed. There was no prayer by the Bank or the defendants for removal of the appellant or for appointment of a new receiver nor any allegation had been made against the appellant as a Receiver. The order is silent in respect of the appellant who continued as a Receiver and the new joint Receivers appointed were not directed to act along with the appellant. On the contrary, the Bank was directed to make over keys of the place where the goods were lying to the new Receivers and, if the same were not available, liberty was granted to the new Receivers to break open the lock without any reference to the Receiver already appointed. No reasons have been recorded in the order dt. 20th Nov. 1984 to justify the necessity or occasion to appoint two new Receivers. If the appellant makes a grievance that the sole object of passing the said order was to humiliate him, it cannot be said that such grievance was without any substance.
58. Allegations of alleged discrimination against the appellant by the same learned Judge have been made in respect of orders passed in other suits where the appellant appeared as Counsel. I intend to ignore said allegations as the orders passed were appealable and the parties aggrieved were entitled to challenge the same in appeal, As a matter of fact in one of the cases an appeal had been preferred.
59. In the background of the facts it appears to me that one of the cardinal principles of judicial conduct that justice should not only be done but should manifestly and undoubtedly be seen to be done has not been strictly adhered to in this case. This principle not only applies to the parties to the proceedings but also to a member of Bar appointed by the Court in any proceeding or any person who though not a party may beaggrieved by an order of a learned Judge. Il cannot be disputed that the effect of the orders passed in different proceedings was that the appellant was humiliated and ridiculed. This perhaps demonstrates an 'ill-concealed delight' (as expression borrowed from Punamchand Daga v. Subhakaran Dosani reported in : AIR1968Cal186 ). It is a matter of regret that the learned Judge thought it proper to make remarks or criticism or pass orders which reflect seriously on the conduct of the appellant either as a Commissioner of Partition or a Special Referee or as a Receiver. I can only express my grave disapproval of the fact of the learned Judge having acted in this way. The facts of this case when considered in the context of the facts of other cases mentioned hereinabove, would lead to certain unpleasant but irresistible and inexpugnable conclusions. Even where a criticism is justified, I have to restrain myself from making any comment or observation against a Colleague which may bring the High Court into disrepute. Out of respect to the learned Judge I have persuaded myself not to record the inescapable conclusions. I remind myself that a Judge cannot and ought not to forget his oath of office that justice has to be dispensed with without fear or favour, ill-will or affection.