1. Defendants in O.S.No.549 of 1998 on the file of Principal District Munsif's Court, Namakkal are the revision petitioners.
2. Plaintiff filed a suit for declaration that he has got right of way to the scheduled property and for consequential injunction restraining defendants from interfering with that right. In the schedule plaintiff has given the description about the way through which he wants access to his property.
3. Defendants seriously contested the claim of plaintiff by filing written statement.
4. During trial, a Commissioner was deputed, who filed his report and plan on 20.11.1998. Plaintiff filed his objection to the report on 4.12.1998 and moved an application that since objection was filed belatedly, seeking permission of the Court to receive the same. He also filed an application as I.A.No.993 of 1999 to scrap the Commissioner's report for various reasons mentioned in the objection.
5. A detailed counter was filed by petitions contending that there is no necessity to scrap the report and even if there is any defect or deficiency in the report, the same could be rectified by asking the very same Commissioner to file a supplementary report.
6. By the impugned order, lower court scrapped the report. The same is challenged in this revision petition.
7. Notice of motion was ordered and interim stay was granted. After respondent entered appearance, I heard the revision.
8. Order 26, Rule 10 of Code of Civil Procedure deal withe procedures of Commissioner, which read thus :
"Order 26, Rule 10 -Procedure of Commissioner -(1) The Commissioner, after such local inspection as he deem 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 -The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence win the suit an 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) Commissioner may be Examined in person -Where the Court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to be made as it shall think fit."
9. As per the said rule, the report of the Commissioner shall be evidence in the case and shall form part of the record. Sub-rule (3) enables the Court to order further enquiry on the report if the Court is dissatisfied with the proceedings of the Commissioner. Taking these two provisions together, it is clear that before setting aside the report or before further enquiry on the ground that it is dissatisfied with the proceedings of the Commissioner, the Court will have to apply its judicial mind whether the report is defective or deficient for any reason. It is also well settled that merely because an objection has been filed, that will not be a ground for issuing fresh commission. Before setting aside the report, court must record its reasons as to why its is not satisfied with the report. If it scraps the report or feels dissatified with the report, the result is, the Court is not accepting that evidence. Parties are entitled to know the reasons as to why the report is not satisfactory and why the report is scrapped.
10. As early as in Thottamma v. C.S. Subramaniayyan, AIR 1922 Mad.219, a Division Bench of this Court held that the duty of the Court, whenever a Commissioner's report is objected to, is to hear objections win open Court and to decide with the aid of such evidence as it might take if the valuation should be varied and in what direction.
11. In Visvanadham v. Mangamma, AIR 1930 Mad.236, it is held thus:
The practice of appointing a second Commissioner without formally recording objections to the first Commissioner's report and without considering whether the first Commissioner's report should be superseded or not is a practice which cannot be too strongly condemned. Reasons for superseding the first Commissioner's report must be recorded in writing by the Court". (Italics Supplied)
12. A Division Bench of Kerala High Court in the decision reported in Swami Premananda v. Swami Yogananada, , held thus:
"Only if the Court has reason to be dissatisfied with the proceedings and report of the first Commissioner for reasons stated, it can appoint a second Commissioner for further injury. This is a condition precedent. The provision contained in Order 26, Rule 12 is "vital".
It is held in that case that issuing a second commission without recording reasons for setting aside the report or without setting aside the Report is one without jurisdiction and against public policy.
13. Under Order 26, Rule 10, Sub-rule (3), the Court, if it is dissatisfied with the report, can direct such further enquiry also which means even without setting aside the report, the Court can direct the commissioner to rectify the defect or deficiency, taking into consideration the objections and evidence let in in that behalf and to file a supplementary report. As far as possible, Commissioner, who has already visited the property should be directed to file a supplementary report and only if that is not possible, the report could be scrapped.
14. In Sivaraman v. V.C.Narayanan, of the judgment, it is held thus;
".... It has to be remembered that the main purpose and object of issuing a commission for a local investigation is not so much together evidence which the Court can obtain by the methods provided in the Evidence Act and allied Acts, but to obtain evidence which from its very peculiar nature can be had on the spot. It is intended to shed light upon the matter is controversy on the basis of a first hand information on a spot study, and to assist the Court to form a decision on the disputed question. Section 75 of the Code delineates and limits the power of Court to issue commissions. Order 26 contains the detailed provisions but certainly they do not enlarge then width of section 75. The provisions in Order 26 are exhaustive in nature and self- contained to meet the situations where the legislature intended that a commission should issue....."
And finally, it is held in that case thus:
"It is not correct to say that under no circumstances without setting aside an earlier report, the Court can issue a second commission or the same commission to note details which have been omitted by him when he made the first report. "Further enquiry to be made" contemplated by Order 26, Rule 10(3) pre-supposes that an enquiry by the same commissioner also is possible if the Court feels so. If the report of the first commissioner is found to be deficient on any point, the proper course would be to direct same commissioner to remedy the defects."
15. I also had occasion to consider the procedure of Commissioner in the decision reported inVemba Gounder v. Pooncholai, 1996 (I) MLJ 426. In that case I have held thus,
".... there is no finding whether the report filed by the commissioner can be accepted or not i.e., there is no finding by the Court below about the satisfactory procedure adopted by the commissioner in filing the report and also about the correctness of the report.
So long as there is no finding, the jurisdiction of the Court in appointing a second commissioner as sought for by the petitioner is doubtful....."
16. On the basis of these decisions, let us consider whether the impugned order is liable to be interfered with under section 115 of the Code of Civil Procedure.
17. In Paragraph 8 of the Order, lower Court found that the contention of respondent that the report is to be scrapped cannot be accepted. It also found against the respondent that the request for appointing second Commissioner after scrapping the report also cannot be accepted. Even if there is any deficiency or defect in the report, same commissioner could be asked to rectify the mistake. After holding so, in the next paragraph of the Order, it is stated thus,
(Editor: The text of the vernacular matter has not been reproduced.
required.)
For coming to such a conclusion, except the objection, there is no other material before the lower Court. Even, how far the objection have been sustained and whether the defects alleged in the objection could be rectified by getting supplementary report is also not considered by the lower Court. Lower Court has not applied its mind to come to the conclusion that the report already filed is defective in any manner and the same is liable to be set aside or a supplementary report is necessary. Why I am stressing on that point is that the request of the petitioner is not appointment of second commissioner. When second commissioner cannot be appointed without recording reasons for setting aside the report, it follows that the court will have to apply its mind and say that the evidence of the Commissioner is not to be looked into. Parties are entitled to know the reasons as to why the report is defective or cannot be accepted.
18. According to me the impugned order of the lower Court is one without jurisdiction since it has not recorded for setting aside the report. Mere statement that for the reasons stated in the objection, it is set aside is not sufficient. The impugned order is therefore set aside.
19. By setting aside the order, it does not follow that the report is accepted by this court. I direct the lower court to consider the objections in detail along with other evidence and pass orders on the objections to the Commissioner's report. Lower Court also will consider whether the defects or deficiency stated in the objection could be rectified by calling for supplement report for which necessary direction shall be given by the court. Only if the Court feels that even supplementary report will not cure the same, the report shall be set aside and second report will be called for by appointing another commissioner.
20. In the result, the revision petition is allowed. No costs. Lower Court is directed to take evidence on the objections to the Commissioner's report and pass orders in accordance with law and as per the directions given below. C.M.P.No.3855 of 1999 is closed.
