The restriction of issuing commission one after
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE P.SOMARAJAN
15TH DAY OF DECEMBER 2016
RSA.No. 733 of 2004
FRANCIS ASSISSI, Vs SR.BREESIYA
This Second Regular Appeal is preferred against the
decree and judgment of Additional District Court, Thrissur
in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in
the original suit in O.S. 2295/1988 on the file of the
Munsiff Court, Thrissur. The appeal had initially come up
before a learned Single Judge of this Court and it was
placed before us doubting the legal position laid down by a
Division Bench of this Court in Swami Premananda
Bharathi v. Swami Yogananda Bharathi [(1985 KLT
144). Earlier, a single bench of this Court in
Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed
doubt about the legal proposition laid down in the Swami
Premananda Bharathi's case but did not opt to refer the
issue to a Division Bench. In Hydrose V. Govindankutty,
[(1981) KLT 360] M.P.Menon.J. took the view that
without setting aside the report submitted by a finger
print expert, another finger print expert can be
appointed. Another decision drawn in Sivaraman v.
Narayanan [(1986) KLT 578] Varghese Kalliyath .J.
took the view that the court has jurisdiction to appoint
the same Commissioner which he omitted to note in the
report already submitted. So the question came up
whether it is permissible to have a second report of
commission without wiping out the earlier one and
doubted the legal preposition laid down in Swami
Premananda Bharathi's case (supra). Hence the
matter placed before us.
2. Before going into the reference, it is
worthful to narrate the factual sequences involved in the
case. The suit in O.S. No. 2295/88 on the file of Principal
Munsiff, Thrissur, was filed for recovery of possession on
the strength of title, mandatory injunction and for
damages. There are two items of property scheduled in
the plaint, which were originally belonged to Chungath
Ouseph, by virtue of sale deed of the year 1954. It was
later on purchased by the plaintiff on 23.11.1988 from
the son of Chungath Ouseph by name Jose. Item No.1
property is the only access to Item No.2 of plaint
schedule. Its eastern end starts from the municipal road
lying north-south direction. A gate was installed at the
entrance by its previous owner. The property lying on
either side of Item No.1 is owned and possessed by the
defendant. When they attempted to demolish the gate, it
has necessitated the institution of the present suit, by
the plaintiffs for recovery of possession, for damages,
for permanent prohibitory injunction and mandatory
injunction to remove the pipeline drawn through Item
No.1 property.
3. The defendant contested the suit alleging
that the plaint Item No.1 is the way used by the convent
as means of access. The defendant has purchased the
properties in the year 1960. The school compound of the
defendant is having an extent of 2 acre 91 cents, which
is situated on the southern side of convent property. But,
the extent of school compound is mistakenly shown in
the document. There was a wooden gate in front of their
property and it was replaced with an iron gate in the year
1968 by the defendants. A pipeline was drawn across
the plaint Item No.1 property. Telephone and electric
lines were also drawn through the disputed property.
The disputed road is the only way leading to the convent
building which faces towards south and the defendants
are in exclusive possession and ownership of plaint
schedule Item No.1. Even if the plaintiff has any right,
title or interest over the property, the same is stood as
lost by adverse possession and limitation. Hence, they
pressed for dismissal of the suit.
4. An additional written statement was also
filed disputing the title of plaintiff over the plaint
schedule Item No.1 property. Plaint schedule Item No.1
is not a property used by the plaintiff as means of access.
The claim of damage is also disputed. The structures
existing in Item No.1 were in existence right from the
year 1949.
5. A second additional written statement was
also filed disputing the description of Item No.1 property
after its amendment. The pipeline was drawn long
before the suit and it is known to the plaintiff.
6. The Trial Court dismissed the suit by its
judgment dated 20.02.1999 against which appeal in A.S.
No.280/1999 was filed before the Additional District
Court, Thrissur and by impugned judgment dated
04.12.2003 the appeal was dismissed against which this
Regular Second Appeal was preferred.
7. Before going into the impugned judgment
and decree, we would like to have an understanding with
respect to the actual impact of Order XXVI CPC and the
Scheme thereof.
8. Going by Order XXVI, it is clear that its
Rules are regulated in accordance with the purpose in
which a commission could be issued viz., (1) to examine
witnesses. (2) for local investigation (3) for scientific
investigation, performance of ministerial act and sale of
movable property (4) to examine accounts and (5) to
make partitions. Rules 1 to 14 are regulated under
different compartments, under Order XXVI, in
accordance with its purpose viz., Rules 1 to 8
incorporated for the purpose of examining the witnesses,
Rule 9 & 10 for the purpose of local investigations, Rule
10 A, 10B and 10 C for the purpose of commissions for
scientific investigation, performance of ministerial act and
sale of movable property (inserted by the amendment
Act of 104 of 1976 with effect from 1.2.1977), Rules 11
& 12 for examining accounts, and Rules 13 & 14 for
making partitions. Rule 15 to 18 B are general provisions
applicable to commissions issued for various purposes.
Rule 19 to 21 deals with issuance of commission at the
instance of foreign tribunals and High Courts.
9. Going by the above said scheme, the
legislature has in its wisdom given headings bifurcating
Rule 1 to 15 in Order XXVI in accordance with their
purposes. The requirements are different which is well
evident from a joint reading of the various Rules 1 to 15
especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule
10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are
extracted below for reference.
Order XXVI
Commissions to examine witnesses
1..........
2..........
3..........
4..........
Rule 4A. Commission for examination of
any person resident within the local
limits of the jurisdiction of the court.-
Notwithstanding anything contained in these
rules, any court may, in the interest of justice
or for the expeditious disposal of the case or
for any other reason, issue commission in any
Suit for the examination, on interrogatories or
otherwise, of any person resident within the
local limits of its jurisdiction, and the
evidence so recorded shall be read in
evidence.
5............
6...........
Rule 7. Return of commission with
depositions of witnesses.- Where a
commission has been duly executed, it shall
be returned, together with the evidence taken
under it, to the court from which it was
issued, unless the order for issuing the
commission has otherwise directed, in which
case the commission shall be returned in
terms of such order; and the commission and
the return thereto and the evidence taken
under it shall (subject to the provisions of rule
8) form part of the record of the suit.
Rule 8. When depositions may be read in
evidence.- Evidence taken under a
commission shall not be read as evidence in
the suit without the consent of the party
against whom the same is offered, unless--
(a) the person who gave the evidence is
beyond the jurisdiction of the court, or dead
or unable from sickness or infirmity to attend
to be personally examined, or exempted from
personal appearance in court, or is a person in
the service of the Government who cannot, in
the opinion of the court, attend without
detriment to the public service, or
(b) the Court in its discretion dispenses with
the proof of any of the circumstances
mentioned in clause (a), and authorises the
evidence of any person being read as
evidence in the suit, notwithstanding proof
that the cause for taking such evidence by
commission has ceased at the time of reading
the same.
Commissions for local investigations
9.......
10 (1)..........
Rule 10(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 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.
Rule 10(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.
Commissions for scientific investigation,
performance of ministerial act and sale of
movable property
10A(1) .............
10A(2) The provisions of rule 10 of this Order
shall, as far as may be, apply in relation to
Commissioner appointed under this rule as
they apply in relation to a Commissioner
appointed under rule 9.
10B(1) .............
10B(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(1) ...........
10C(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(3)......
Commissions to examine accounts
11.........
12..........
Rule 12(2)Proceedings and report to be
evidence--Court may direct further
inquiry--The proceedings and report (if any)
of the Commissioner shall be evidence in the
suit, but where the court has reason to be
dissatisfied with them, it may direct such
further enquiry as it shall think it.
Commissions to make partitions
13..........
14(1).........
Rule 14 (2)The Commissioner shall then
prepare and sign a report or the
Commissioners (where the commission was
issued to more than one person and they
cannot agree) shall prepare and sign separate
reports appointing the share of each party
and distinguishing each share (if so directed
by the said order) by metes and bounds. Such
report or reports shall be annexed to the
commission and transmitted to the Court; and
the Court, after hearing any objections which
the parties may make to the report or reports,
shall confirm, vary or set aside the same.
Rule 14(3) Where the court confirms or varies
the report or reports it shall pass a decree in
accordance with the same as confirmed or
varied; but where the court sets aside the
report or reports it shall either issue a new
commission or make such other order as it
shall think fit.
(emphasis supplied )
10. Rule 4A was not in the Act till it was inserted
by CPC (Amendment) Act 46 of 1999 with effect from
1.7.2002 enabling and empowering the court to issue a
commission in the interest of justice, for expeditious
disposal or on any other reason.
11.Incidentally, another question came up for
consideration as to the applicability of Rule 8 of Order
XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999
with effect from 1.7.2002. Rule 8 empowers the court to
issue a commission for examination of person only on
satisfying the reason embodied under Clause (a) of Rule
8. By the insertion of Rule 4A, wide discretionary power
is invested with the court in the matter of issuance of
commission for examination of any person on the ground
of "interest of justice or for expeditious disposal or any
other reason", by which the restrictions imposed under
Rule 8 of Order XXVI CPC are taken away, virtually
making Rule 8 redundant. We have also taken note of
Rule 7 of Order XXVI wherein the evidence taken shall
"subject to the provision of Rule 8" form part of the
record of the suit. The expression subject to the
provision of Rule 8 " was inserted by the Act of 104 of
1976 with effect from 1.2.1977 prior to the incorporation
of Rule 4A by the Act 46 of 1999 with effect from
1.7.2002. Since Rule 8 became redundant it has no
application in the matter of Rule 7 of Order XXVI.
12. The expression "shall be read in
evidence" incorporated in Rule 4A, the expression "shall
not be read as evidence" incorporated in Rule 8, the
expression "shall be in evidence in the suit and shall form
part of the record" engrafted in sub rule 2 of Rule 10,
the expression "shall be in evidence in the suit" as
incorporated in sub rule 2 of Rule 12 and the expression
"shall confirm or vary or set aside" as incorporated in sub
rule 2 of Rule 14 would clearly show that the requirement
for admitting the report of the Commissioner either on
record or in evidence under Rules 4A, 8, 10(2) and (3),
12 (2) and 14(2) are different. In Rule 14 (2) nothing
mentioned whether it will form part of record or
evidence. But says that the court can confirm or vary or
set aside the report on hearing the objections of the
party concerned. Different yardsticks were applied in the
matter of commissioner's report as to whether it would
form part of evidence or part of record based on the
purpose in which the commission could be issued viz.,
six categories made mentioned above.
13. Further the power of court in dealing with
the commissioner's report are also differently dealt in
Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).
Rule 8 became redundant by virtue of amendment and
incorporation of Rule 4A to Order XXVI. What is
mandated in Rule 4A is that the evidence so recorded by
the commissioner "shall be read in evidence". So the
court is bound to read in evidence what is recorded by
commissioner on examination of witnesses. There is no
provision for setting aside the deposition recorded by the
commissioner or the report submitted by him. It doesn't
say anything about whether it would form part of the
record or evidence in the suit. Sub rule (3) of Rule 14
says that where the Court confirms or varies the report
it shall pass a decree in accordance with the same, but
where the Court sets aside the report or reports, it shall
either issue a new commission or make such other order
as it shall think fit. Going by Sub rule (3) of Rule 14, it is
clear that a commission which was issued for making
partition either be confirmed or be varied or be set aside
as the case may be by the Court and when it is
confirmed or varied the Court is bound to pass a decree
in accordance with the same but when it is set aside a
second commission can be issued for which setting
aside of the earlier report is a condition precedent. In
short, setting aside of an earlier report of the
Commissioner for issuing a second commission mandated
only under sub rule 3 of Rule 14 of Order XXVI CPC.
14. There is no provision anywhere under Rule 1
to 8 enabling the Court to examine the Commissioner
who prepared the report and recorded the deposition of a
witness/witnesses as the case may be, presumably on
the reason that there is no scope for setting aside the
deposition recorded or the report thereof. If the
examination of witnesses is incomplete or a re-
examination of the witnesses by recalling him is
necessitated after the submission of the first report no
doubt a second commission can be issued for that
purpose. The question of setting aside earlier report of
the commissioner does not arise under Order XXVI Rule 1
to 8, more specifically the commissions which were
issued for examination of persons (witnesses) and the
report and deposition recorded by him.
15. There is some slight difference in the
approach made by the legislature in Rule 10(2) and (3)
wherein it is mandated that the report of the
commissioner and the evidence taken by him "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 as to the manner in which he has
made the investigation. Rule 10(3) deals with the power
of the Court to direct further enquiry when there is any
reason to dissatisfy with the proceedings of the
Commissioner. Setting aside of a report or cancelling a
report of Commissioner is conspicuously absent in sub
rule (2) and (3) of Rule 10, but it empowers the Court to
direct "such further enquiry" which stands for a second
enquiry or a subsequent enquiry necessarily through a
second commission.
16. The provisions of Rule 10 is made
applicable in relation to a commission appointed under
Rule 10A, 10B and 10C which are dealing with the
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property by virtue of sub rule 2 attached to 10A, 10B
and 10C. So the very same legal position is applicable in
the matter of commission issued for scientific
investigation, performance of ministerial act and sale of
movable property under Rule 10A, 10B and 10C and a
second commission is possible without setting aside the
earlier one.
17. The very same provision incorporated in
Rule 12(2) of Order XXVI, provides the power to direct
"such further enquiry" when there is reason to dissatisfy
with the report of the commissioner. A second
commission is possible without setting aside the earlier
one in the matter of examination of accounts through
commission.
18. The very similar provision is incorporated
in Rule 12(2) also. The authority to set aside
commission's report or to vary the commission's report is
engrafted only in sub rule (2) of Rule 14 which stands for
commission to make partition. On applying a plain
reading and strict interpretation to Rule 1 to 14 to Order
XXVI, the resultant effect is that a report submitted by
the Commissioner can be varied or set aside by the Court
only under Rule 14 sub rule (2) of Order XXVI, which
stands for commission to make partition and it is a
condition precedent for issuing a second commission.
19. The general provisions i.e. Rule 15 to 18
(B) of Order XXVI do not say anything about the
examination of Commissioner, or issuance of a second
commission or the requirement of setting aside of first
report.
20. Divergent views were expressed by various
High Courts regarding the question whether the earlier
report of the Commissioner should be wiped off before
issuing a second commission.
21. The Madras High Court condemned the
practice of appointing successive Commissioners in
Thottama v. C.S. Subramaniyyan (AIR 1922 Madras
219). That decision was rendered in Rule 14 of Order
XXVI CPC. But going by the decision, it is clear that the
commission was issued not for effecting partition but for
making local investigation and to assess the value of
improvements effected in the mortgaged property. In
that case three successive Commissions were issued for
the very same purpose viz; for assessing the value of
improvements effected in the mortgaged property. The
said practice of issuing commission one after another was
condemned and deprecated. In that decision it appears
that the mandate under Rule 14 of Order XXVI CPC was
wrongly applied.
22. A Division Bench of Madras High Court in
Ambi and another v. Kunhikavamma and others
[(AIR 1929 Madras 661] considered both the
application of Rule 10(3) and Rule 14(3) and discussed
in detail, the scope of "further enquiry" in the following
lines.
The rule is R. 10(3) and lays down that
further enquiry may be ordered when the Court is
for any reason dissatisfied with the proceedings of
the Commission. It may be noted that there is no
provision corresponding to that in R.14 (3) under
which the Court may issue a new commission.
What is contemplated under R.10(3) obviously is a
further enquiry by the Commissioner already
appointed by the Court itself. It may be that where
the Court is so dissatisfied with the whole
proceedings of the commissioner that it thinks it
better to discard the whole record and start afresh,
such a procedure would not be contrary to the
code. That is the line of argument adopted in
Thottamma v.
Subramaniayyan.................................................
........................................................................
...........
Only the decision of the Court that the work had
been so badly done that it had to be done over
again would avail to validate the issue of a second
commission........................................................
........................................................................
............
Only if he is of opinion after hearing both sides
that the report is wholly useless is it open to him to
discard it and issue a fresh commission to cover the
same ground, and in that case the report of the
first commission is as if it had never been and
would not be evidence in the
case.................................................
He even issued an order to appoint a third
commission, whose report no doubt would have
been dealt with in the same way, and so on ad
infinitum. This procedure, besides being in our view
contrary to law, creates considerable
embarrassment to us here.
23. The said decision, though doesn't say
anything with respect to the requirement to set aside the
earlier one before issuing the second one, the practice of
issuing commission one after another is deprecated.
24. Yet another Division Bench of same High
Court in Kunhi Kutti Ali and another v. Mohammad
Haji and others [AIR 1931 Madras 73] took the view
that the earlier commission should be wiped out before
issuing a second commission. The relevant portion is
extracted for reference.
"We have in the first place to remark that the
lower Court should not have issued two separate
commissions to deal with one and the same
subject and to treat the reports of both the
commissioners as evidence in the case. The
exact circumstances in which he came to issue
the second commission do not appear from the
record that has been placed before us. But the
second commission should not have been issued,
unless it was thought that the report of the first
commissioner was not satisfactory in which case
the earlier commission should have been wiped
out altogether and attention should have been
paid only to what was reported by the second
commissioner. Instead of this, the learned
Subordinate Judge has balanced the report of
one commissioner against that of the other and
has expressed a performance for the views of the
first commissioner. In taking this course, he has
acted with great impropriety and contrary to
what is contemplated by O.26.R.10(3)Civil PC."
25. A Division Bench of Patna High Court in
Shib Charan Sahu and others v. Sarda Prasad and
another (AIR 1937, Patna 670) took a different view
holding that the first commissioner's report cannot be
wiped off the record. It is held that when a Court issues
a commission but is dissatisfied with the report of the
Commissioner, another commission can be issued but the
earlier one cannot be wiped of the record. The relevant
portion of the judgment is extracted below for reference.
Commission- Court dissatisfied with report of
commissioner, can issue another commission-
Report of first commissioner however cannot be
wiped out of record.........................................
When a Court issues a commission. But is
dissatisfied with the report of the commissioner
it is entitled to issue another commission and
also for its report, but the report of the first
commissioner cannot be wiped off the record.
In those judgments, the Madras High Court was
endeavouring to correct a very bad tendency on
the part of the Munsifs of the Malabar districts
who appeared to have got into the habit of
sending out simultaneous commissions to
investigate the same issue of fact and then
taking all the commissioner's reports into
consideration and deciding as between these
various reports which of them was preferable;
and this habit of sending out commissions
whether simultaneous or consecutive had
become a nuisance which the Madras High Court
very properly desired to check and put an end
to. I can find in those judgments no statement
of a principle such as is contended for in this
appeal. There is nothing in O.26, R.10, Civil P.C
to justify such a contention. It is in the power of
the Trial Court to send out a second or even a
third commission, and when all the materials
are before the Court it may at the time of
delivering judgment attach very little or no
weight to the first commissioner's report but this
is very far from saying that this amounts to
requiring the first report to be wiped out of the
record and not considered as evidence.
26. A single bench of the same High Court
followed the principle laid down in Shib Charan
Sahu's case (supra) in the following lines.
Order XXVI provides that the Commissioner
appointed under Rule 9 has to return the
evidence recorded by him together with his
report in writing signed by him to the Court.
Sub rule (2) of R.10 of O.XXVI interalia makes
it clear that the report of the Commissioner
and the evidence taken by him shall be
evidence in the suit and shall form part of the
record. Sub rule (3) authorises the Court to
direct such further enquiry to be made as it
thinks fit in case the Court is, for any reason
dissatisfied with the proceedings of the
Commissioner. No provision of the Code,
however, provides for the Commissioner's
report being taken off the record or not being
considered as evidence in any circumstances.
The value to be attached to the report is
however, a different matter. It is obvious that
the Court was either not satisfied with the
proceedings of the first Commission or merely
because of the statements made by the
parties on January 16, 1970 the second
commission was ultimately issued.
27. It was held by a Single Bench of this High
Court in Narayan Guptan v. Madhava Menon (1964
KLT 453) that the issuance of a second Commission
without setting aside the earlier one is only an error, or
defect or irregularity in the proceedings which does not
per se affect the merits of the case.
28. In Moidu v. Lekshmi Amma [(1968)
KLT 699] V.R.Krishna Iyer. J. took the view that a
second commission can be issued only after formally
setting aside the earlier one. The relevant portion of the
said decision is extracted below for reference.
If a second commission is to be issued under
such circumstances, the first report must be
formaly set aside. A conscious irregularity need
not be committed at a stage where the decree
has not been passed, when it can be set
right..............................................................
.......
He rightly relies upon Order xxvi R. 18, Civil
Procedure Code, and the ruling reported in
Achuthan v. Kunhipathumma (1967 KLT. 326)
wherein a Division Bench of this Court has held
that it is a principle of natural justice that it is
only evidence taken in the presence of a party
that can be used against him. For this reason,
according to their Lordships, Order XXVI R. 18
CPC. provides for an opportunity being given to
the parties to be present before the
commissioner in the property at the time of his
inspection. Order XXVI R. 18, CPC. enshrining as
it does a wholesome principle of natural justice,
is treated as imperative. Under Order XXVI R. 18
cpc a direction has to be issued by the Court to
the parties before the issue of a commission and
this direction should be issued after notice to the
parties; at least the commissioner should issue
notice to the parties calling upon them to appear
in the property on the date he proposes to visit
the property for investigation. Unfortunately,
obsessed by a sense of emergency, the
commissioner has admittedly departed from his
obligation under Order XXVI R. 18 CPC. The
consequence is that the Court is constrained to
direct the second commissioner to make
"necessary rectification and additions in the light
of the objections raised by the
defendants.....................................................
.....
Nevertheless, his report has been prepared
ex-parte and that is the vice of it. If a second
commission is to be issued under such
circumstances, the first report must be formally
set aside. Of course, the ruling reported in
Narayana Guptan v. Madhava Menon (1964 KLT.
453).
In Hydrose v. Govindankutty [(1981 KLT
360], the expression "dissatisfied with the
proceedings of the Commissioner" as engrafted
in Rule 10 (3) Order XXVI discussed in detail in
reference to Rule 12 (2) of Order XXVI and it
was held that "sub rule (3) does not specifically
provide for wiping out evidence which is
already part of the record. It only contemplates
a further enquiry and therefore, a further report
which will also become evidence and part of the
record by virtue of sub rule (2). If the Court is
dissatisfied with the proceedings of the first
commissioner, it may not attach much
probative value to his report in deciding the
issue before it. Rule 10(3) does not provide for
setting aside a report and issuing a new or
second commission. It is not the repository of
the court's power to issue a second
commission."
29. The very same view was reiterated by
another single Bench of this Court in Ummer v.
Muhammed [(1983) KLT 258] in the following lines.
The Court can issue a second commission only
under Order 26 Rule 10(3) of the Code. As per the
above provision, the Court should, for any reason,
he dissatisfied with the proceedings of the
commissioner already deputed. The dissatisfaction
can be before the submission of the report or after
that. No question of setting aside the report arises
if the Court was dissatisfied about the work of the
commissioner and issued a second commission
before he submitted the report. Proceedings of the
Commissioner cannot but include the report of the
commissioner, if a report has been submitted. If
the Court is dissatisfied about what the
commissioner did, can the report be salvaged
simply because the report is not specifically made
mention of in rule 10(3). Not only that the Court
gets jurisdiction to issue a second commission only
if the Court for any reason is dissatisfied with the
work of the first commissioner.
Going by the scheme of the relevant provision of
the Code, this is not something which is
contemplated. Simply because rule 10(3) does not
provide for the setting aside of the first commission
report, it cannot be said that a second commission
can be issued without setting aside the first
commission report. If, for example, the Court feels
some more details are to be gathered, the Court
can depute the same commissioner for the same
purpose and in that case, no setting aside of the
report already submitted is necessary.
Order appointing a second commissioner, without
assigning any reasons why the report of the
previous commissioner is ignored, is not only
contrary to the provisions of O.26 R.10((3) but is to
be condemned.
(emphasis supplied)
In that decision, the Single Bench of this Court took the
view that the court can issue a second commission only
under Order XXVI Rule 10(3) CPC. This observation was
made without considering the application of Rule 14(3) of
Order XXVI CPC.
30. The Culcutta High Court in Chinmaya
Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =
2016 KHC 2319] took another view stating that
"although rule 10 of Order XXVI does not expressly
provide for setting aside of a commissioner's report, the
court can do so in exercise of its inherent power."
31. We are in respectful disagreement with
the view taken by the High Court of Calcutta simply on
the reason that the mandate under Rule 10 says that
the report "shall be in evidence in the suit and shall form
part of record". So in no event it can be set aside but the
probative value of the same can be looked into and
assess at the time of hearing of the suit or proceedings.
If it is found that there is no probative value attached to
the said document, the court need not act upon the
document but there is no provision for setting aside the
same under Rule 10 of Order XXVI as the mandate
included therein says otherwise. It is also well settled
that when there is provision to meet a particular situation
in the CPC the court is not expected to exercise
jurisdiction under Section 151 CPC. A strict interpretation
of rule 10 of Order XXVI, would show that there is no
scope or occasion for setting aside the report of the
commissioner which is "shall be in evidence in the suit
and shall form part of the record."
32. In Swami Premananda Bharathi v.
Swami Yogananda Bharathi [(1985 (1) KLT 144)] a
Division Bench of this Court held as follows:
"That the first commissioner's report and
proceedings should be set aside for reasons to be
recorded and then only the court can proceed to
appoint another commissioner to do the work is a
wholesome rule of law based on public policy. The
proceedings in the court below could be expedited
without waste of time and money. We are of the
view, that 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 inquiry.
This is a condition precedent. The provision
contained in Order XXVI Rule 12 C.P.C is "vital".
Strict adherence alone will facilitate speedier,
effective and cheaper administration of justice.
Therefore, the appointment of the second
commissioner and the reports filed by him without
setting aside the first commissioner's report is
wholly illegal and without jurisdiction".
33. The said decision was rendered after
referring the above said decisions but did not go into the
question of different treatment given to Rule 1 to 14 of
Order XXVI in accordance with the purpose to be
achieved, but had taken note of minor difference in the
phraseology in Order XXVI Rule 10 (3) CPC and Order
XXVI Rule 12 CPC. As discussed in earlier paragraph
Rule 12 deals with examination of accounts or
adjustment of accounts through commission. But Rules
10(2) and (3) stand for commission for local
investigation. The power of Court to examine the
Commissioner personally in open court is engrafted in
Rule 10(2) but there is no such power included any
where in Rule 11 or 12. But for saying that the report of
the Commissioner shall be evidence in the suit. The
expression "shall form part of the record" as engrafted in
Rule 10 (2) is conspicuously absent in Rule 12 (2). In
fact Rule 10 and Rule 12 designed and intended for
meeting different situations are having different
applications and impact, though the principles laid down
therein are one and the same.
34. Neither in Rule 10 nor in Rule 12 the power
to set aside the commission report or to wipe out of
record, is included. The report submitted under Rule 12,
though shall be in evidence in the suit, it will not form
part of the record as in the case of Rule 10 wherein it is
specifically stated that the report of the Commissioner
and the evidence taken by him shall form part of the
record. As discussed in earlier paragraphs both Rule 10
and 12 emphasis the need to issue and to direct a
further enquiry when the Court has reason to dissatisfy
with the proceedings of the Commissioner. Necessarily a
further enquiry stands for issuance of a second
Commission. Nowhere it is stated in Rule 10 or 12 the
requirement of setting aside earlier one or to discard the
earlier one. Setting aside of a commission report or
varying a commission report, stands provided only in
Rule 14(2) which stands for issuance of commission to
make partition. The Division Bench did not consider the
purpose for which Rule 10 and 12 was enacted and also
the conspicuous absence of expression "shall form part
of record" in Rule 12 (2) and also absence of provision
either in Rule 10 or in Rule 12 for setting aside or
varying the commission report. What is applied by the
Division Bench in that decision is the public policy to have
a speedier, effective and cheaper administration of
justice and not on the basis of the scheme of Order XXVI
CPC and the rules thereunder. In fact what is held in
that decision is that the Court can appoint a second
commission for further enquiry only if the Court has
reason to dissatisfy with the proceedings and report of
the first commissioner for the reasons stated.
35. It is well settled that a judgment has to be
read in whole to appreciate what actually is rendered, the
ratio/rationale and the principle applied, in order to
understand what is actually given by the judgment/
adjudication thereof. There may be so many
observations/discussions leading to an inference or in
arriving at a conclusion in a judgment. It is not advisable
to pick and choose one or two words or sentences and to
interpret the same apart from what is actually dealt
under the judgment.
36. While interpreting a judgment on the
rationale/ratio applied therein, the observations,
reasons/discussions made therein in arriving at a
conclusion shall be understood not in isolation apart from
the conclusion arrived at. The observations must be read
in the context in which they appear to have been stated
and observation made in the judgment should not be
read in isolation apart from the conclusion arrived
therein. Further the observation shall not be substituted
in place of conclusion arrived at, there cannot be any
uniform application of rules governing interpretation of
statutes and interpretation of judgment/orders. They are
governed by different fields of interpretation.
37. In Union of India and another v. Major
Bahadur Singh [(2006) 1 SCC 368] the Apex Court
settled the following in the matter of interpretation of
judgments.
"Observations of the courts are neither to be
read as Euclid's theorems nor as provisions of the
statute and that too taken out of their context.
These observations must be read in the context in
which they appear to have been stated.
Judgments of the courts are not to be construed as
statutes. To interpret words, phrases and
provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but
the discussions is meant to explain and not to
define."
38. Then again in Nair Service Society v.
State of Kerala [(2007) 4 SCC 1], it was held by the
Apex Court that for construing a judgment, it must be
read in its entirety.
39. In Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group and others
[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the
position stands further reiterated as follows:
"Judgment are required to be read in their entirety.
A judgment cannot be read as a statute.
Construction of a judgment should be made in the
light of the factual matrix involved therein. What is
more important is to see the issues involved therein
and the context wherein observations were made.
Any observations made in a judgment should not be
read in isolation and out of context."
40. While applying the above said principle in
interpreting the judgment in Swami Premananda
Bharathi's case the observation made by the Division
Bench by importing application of public policy in order to
have a speedy disposal, effective time management and
cheaper administration of justice has to be understood in
that context. The conclusion arrived at by the Division
Bench is that "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
commission for further inquiry and that is a condition
precedent. The condition precedent is the dissatisfaction
of the proceedings and report of the first commission.
So, in fact, the position rendered in that decision does
not have any inconsistency with the earlier view taken in
Hydrose v. Govindankutty [1981 KLT 360] and
Ummer v. Muhammed [1983 KLT 258].
41. The question of setting aside of earlier
commission report before issuing a second commission
would arise only in case of commission issued for
effecting partition. In all other cases there is no
necessity, requirement or need to set side the earlier
report, before issuing a second Commission either for the
very same purpose or for some other purposes. No such
mandate is included any where in Rule 1 to 13 to Order
XXVI. At the same time, we cannot shut our eyes into
certain realities which are prevailed in certain part of
Kerala in issuing commissions one after another. There
are cases of issuing three or four commissions for the
very same purpose. Such practice definitely is
detrimental to the speedy disposal of the suit and
cheaper administration of justice. Both are detrimental
to the system and hence has to be deprecated. But at
the same time, it does not mean that the court is not
empowered to issue one or two or three commissions if
the situation warrants so.
42. The restriction of issuing commission one after
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
43. On coming into the impugned judgment,
the first appellate court proceeded in the matter under a
mistaken impression that the second commission can be
issued only after setting aside the first one, relying on
the decision rendered in Swami Premananda Bharathi's
case(supra). Further, the first appellate court committed
a serious error in overlooking the settled position that
when there is mistake or difference in the survey
number, description of boundary will prevail over, the
property. Ext.C1(a) is seen prepared correctly identifying
and locating item (1) property having an extent of 10
cents in Survey No.164/3. The properties lying on
either side belongs to the defendants. The defendants
did not have any case that they had obtained title over
10 cents of property comprised in Survey No. 164/3
under any document of title but simply advanced a case
that the same will form part of their large extent of
property and at the same time they advanced a case
that the description and extent as stated in their
document of title are not correct. So no much reliance
can be given to the case advanced by the defendant that
the 10 cents of property comprised in survey No.164/3
will form part of their large extent. No satisfactory
evidence much less any evidence adduced in that
behalf by the defendant, which was also over looked by
the lower court. On the other hand, the document of title
produced by the plaintiff and the boundary description
entered therein fully and completely tally with Ext.C1 (a)
plan in respect of the 10 cents of property comprised in
survey No.164/3. The only defect in the case advanced
by the plaintiff is that as per their document of title in
Ext.A8, the sub division number was wrongly/ mistakenly
entered for which a correction deed was executed as
Ext.A9. As discussed earlier, even without a correction
deed or correcting the sub division number or the survey
number if it was found that there is a mistake, crept in
R.S.A.No.733/2004 47
the survey number, the court has to look into the
boundary description and the boundaries entered in the
document and to identify and locate the property based
on the boundaries. The said settled principle was
overlooked or rather ignored by the first appellate court.
Added by the fact that the defendant did not have any
consistent case or acceptable version regarding the
acquisition of right title or interest over item No.1
property. On the other hand, on either side of item
No.1, the property belonging to the defendant situated.
No other way is available to the property of plaintiff
scheduled in the suit as item No.2.
44. So the material facts which are relevant for
consideration in the adjudication of dispute involved in
the suit have been not considered either by the trial court
or by the appellate court which has resulted in the
miscarriage of justice which would attract the
interference by this Court and we are doing so, by
setting aside the decree and judgment of both the trial
R.S.A.No.733/2004 48
court and the first appellate court. The matter is
remanded back to the first appellate court to have a fresh
consideration of facts and evidence involved in the case
in accordance with law in force. We are also constrained
to issue direction to the first appellate court to have an
earlier disposal of the appeal within a time schedule of
three months from the date of receipt of copy of this
judgment, as the litigation was started in the year 1988.
No costs. The parties shall appear before the first
appellate court on 5.1.2017.
Sd/-
P.R.Ramachandra Menon
Judge
Sd/-
P.Somarajan
Judge
al/-
True copy
P.S to Judge
R.S.A.No.733/2004 49
fair
this is copied from the chamber of P.Somarajan(J) as on
19.12.2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938
RSA.No. 733 of 2004 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN AS 280/1999 of III ADDITIONAL DISTRICT
COURT (ADHOC), THRISSUR DATED 04-12-2003
AGAINST THE ORDER/JUDGMENT IN OS 2295/1988 of PRINCIPAL MUNSIFF
COURT,THRISSUR DATED 20-02-1999
APPELLANT/APPELLANT/PLAINTIFF::
-------------------------------
FRANCIS ASSISSI, S/O.THATTILMANDI JOSEPH,
RESIDING AT ANTHIKKAD VILLAGE, THRISSUR TALUK.
BY ADVS.SRI.T.C.SURESH MENON
SMT.G.GEETHISHA
SMT.M.R.VALSA
RESPONDENTS/RESPONDENTS/DEFENDANTS::
--------------------------------------
1. SR.BREESIYA
MOTHER SUPERIOR, INFANT JESUS CONVENT,,
ARANATTUKARA VILLAGE, THRISSUR TALUK.
2. SR.LISIYA,
ASSISTANT MOTHER SUPERIOR,
INFANT JESUS CONVENT,, ARANATTUKARA VILLAGE,
THRISSUR TALUK.
3. INFANT JESUS CONVENT,
ARANATTUKARA VILLAGE, THRISSUR TALUK,,
REPRESENTED BY ITS MOTHER SUPERIOR.
R,R1 TO R3 BY ADV. SRI.M.GEORGE THOMAS
R,R1 TO R3 BY ADV. SRI.P.VIJAYA BHANU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
al/-
P.R.Ramachandra Menon 'CR'
&
P.Somarajan, JJ.
====================================
R.S.A.No.733 of 2004
====================================
Dated this the 15 thday of December, 2016.
JUDGMENT
P.Somarajan, J.
This Second Regular Appeal is preferred against the
decree and judgment of Additional District Court, Thrissur
in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in
the original suit in O.S. 2295/1988 on the file of the
Munsiff Court, Thrissur. The appeal had initially come up
before a learned Single Judge of this Court and it was
placed before us doubting the legal position laid down by a
Division Bench of this Court in Swami Premananda
Bharathi v. Swami Yogananda Bharathi [(1985 KLT
144). Earlier, a single bench of this Court in
Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed
doubt about the legal proposition laid down in the Swami
Premananda Bharathi's case but did not opt to refer the
issue to a Division Bench. In Hydrose V. Govindankutty,
R.S.A.No.733/2004 2
[(1981) KLT 360] M.P.Menon.J. took the view that
without setting aside the report submitted by a finger
print expert, another finger print expert can be
appointed. Another decision drawn in Sivaraman v.
Narayanan [(1986) KLT 578] Varghese Kalliyath .J.
took the view that the court has jurisdiction to appoint
the same Commissioner which he omitted to note in the
report already submitted. So the question came up
whether it is permissible to have a second report of
commission without wiping out the earlier one and
doubted the legal preposition laid down in Swami
Premananda Bharathi's case (supra). Hence the
matter placed before us.
2. Before going into the reference, it is
worthful to narrate the factual sequences involved in the
case. The suit in O.S. No. 2295/88 on the file of Principal
Munsiff, Thrissur, was filed for recovery of possession on
the strength of title, mandatory injunction and for
damages. There are two items of property scheduled in
R.S.A.No.733/2004 3
the plaint, which were originally belonged to Chungath
Ouseph, by virtue of sale deed of the year 1954. It was
later on purchased by the plaintiff on 23.11.1988 from
the son of Chungath Ouseph by name Jose. Item No.1
property is the only access to Item No.2 of plaint
schedule. Its eastern end starts from the municipal road
lying north-south direction. A gate was installed at the
entrance by its previous owner. The property lying on
either side of Item No.1 is owned and possessed by the
defendant. When they attempted to demolish the gate, it
has necessitated the institution of the present suit, by
the plaintiffs for recovery of possession, for damages,
for permanent prohibitory injunction and mandatory
injunction to remove the pipeline drawn through Item
No.1 property.
3. The defendant contested the suit alleging
that the plaint Item No.1 is the way used by the convent
as means of access. The defendant has purchased the
properties in the year 1960. The school compound of the
R.S.A.No.733/2004 4
defendant is having an extent of 2 acre 91 cents, which
is situated on the southern side of convent property. But,
the extent of school compound is mistakenly shown in
the document. There was a wooden gate in front of their
property and it was replaced with an iron gate in the year
1968 by the defendants. A pipeline was drawn across
the plaint Item No.1 property. Telephone and electric
lines were also drawn through the disputed property.
The disputed road is the only way leading to the convent
building which faces towards south and the defendants
are in exclusive possession and ownership of plaint
schedule Item No.1. Even if the plaintiff has any right,
title or interest over the property, the same is stood as
lost by adverse possession and limitation. Hence, they
pressed for dismissal of the suit.
4. An additional written statement was also
filed disputing the title of plaintiff over the plaint
schedule Item No.1 property. Plaint schedule Item No.1
is not a property used by the plaintiff as means of access.
R.S.A.No.733/2004 5
The claim of damage is also disputed. The structures
existing in Item No.1 were in existence right from the
year 1949.
5. A second additional written statement was
also filed disputing the description of Item No.1 property
after its amendment. The pipeline was drawn long
before the suit and it is known to the plaintiff.
6. The Trial Court dismissed the suit by its
judgment dated 20.02.1999 against which appeal in A.S.
No.280/1999 was filed before the Additional District
Court, Thrissur and by impugned judgment dated
04.12.2003 the appeal was dismissed against which this
Regular Second Appeal was preferred.
7. Before going into the impugned judgment
and decree, we would like to have an understanding with
respect to the actual impact of Order XXVI CPC and the
Scheme thereof.
8. Going by Order XXVI, it is clear that its
Rules are regulated in accordance with the purpose in
R.S.A.No.733/2004 6
which a commission could be issued viz., (1) to examine
witnesses. (2) for local investigation (3) for scientific
investigation, performance of ministerial act and sale of
movable property (4) to examine accounts and (5) to
make partitions. Rules 1 to 14 are regulated under
different compartments, under Order XXVI, in
accordance with its purpose viz., Rules 1 to 8
incorporated for the purpose of examining the witnesses,
Rule 9 & 10 for the purpose of local investigations, Rule
10 A, 10B and 10 C for the purpose of commissions for
scientific investigation, performance of ministerial act and
sale of movable property (inserted by the amendment
Act of 104 of 1976 with effect from 1.2.1977), Rules 11
& 12 for examining accounts, and Rules 13 & 14 for
making partitions. Rule 15 to 18 B are general provisions
applicable to commissions issued for various purposes.
Rule 19 to 21 deals with issuance of commission at the
instance of foreign tribunals and High Courts.
9. Going by the above said scheme, the
R.S.A.No.733/2004 7
legislature has in its wisdom given headings bifurcating
Rule 1 to 15 in Order XXVI in accordance with their
purposes. The requirements are different which is well
evident from a joint reading of the various Rules 1 to 15
especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule
10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are
extracted below for reference.
Order XXVI
Commissions to examine witnesses
1..........
2..........
3..........
4..........
Rule 4A. Commission for examination of
any person resident within the local
limits of the jurisdiction of the court.-
Notwithstanding anything contained in these
rules, any court may, in the interest of justice
or for the expeditious disposal of the case or
for any other reason, issue commission in any
Suit for the examination, on interrogatories or
otherwise, of any person resident within the
R.S.A.No.733/2004 8
local limits of its jurisdiction, and the
evidence so recorded shall be read in
evidence.
5............
6...........
Rule 7. Return of commission with
depositions of witnesses.- Where a
commission has been duly executed, it shall
be returned, together with the evidence taken
under it, to the court from which it was
issued, unless the order for issuing the
commission has otherwise directed, in which
case the commission shall be returned in
terms of such order; and the commission and
the return thereto and the evidence taken
under it shall (subject to the provisions of rule
8) form part of the record of the suit.
Rule 8. When depositions may be read in
evidence.- Evidence taken under a
commission shall not be read as evidence in
the suit without the consent of the party
against whom the same is offered, unless--
(a) the person who gave the evidence is
beyond the jurisdiction of the court, or dead
or unable from sickness or infirmity to attend
R.S.A.No.733/2004 9
to be personally examined, or exempted from
personal appearance in court, or is a person in
the service of the Government who cannot, in
the opinion of the court, attend without
detriment to the public service, or
(b) the Court in its discretion dispenses with
the proof of any of the circumstances
mentioned in clause (a), and authorises the
evidence of any person being read as
evidence in the suit, notwithstanding proof
that the cause for taking such evidence by
commission has ceased at the time of reading
the same.
Commissions for local investigations
9.......
10 (1)..........
Rule 10(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 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
R.S.A.No.733/2004 10
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.
Rule 10(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.
Commissions for scientific investigation,
performance of ministerial act and sale of
movable property
10A(1) .............
10A(2) The provisions of rule 10 of this Order
shall, as far as may be, apply in relation to
Commissioner appointed under this rule as
they apply in relation to a Commissioner
appointed under rule 9.
10B(1) .............
10B(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
R.S.A.No.733/2004 11
relation to a Commissioner appointed under
rule 9.
10C(1) ...........
10C(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(3)......
Commissions to examine accounts
11.........
12..........
Rule 12(2)Proceedings and report to be
evidence--Court may direct further
inquiry--The proceedings and report (if any)
of the Commissioner shall be evidence in the
suit, but where the court has reason to be
dissatisfied with them, it may direct such
further enquiry as it shall think it.
Commissions to make partitions
13..........
14(1).........
Rule 14 (2)The Commissioner shall then
prepare and sign a report or the
R.S.A.No.733/2004 12
Commissioners (where the commission was
issued to more than one person and they
cannot agree) shall prepare and sign separate
reports appointing the share of each party
and distinguishing each share (if so directed
by the said order) by metes and bounds. Such
report or reports shall be annexed to the
commission and transmitted to the Court; and
the Court, after hearing any objections which
the parties may make to the report or reports,
shall confirm, vary or set aside the same.
Rule 14(3) Where the court confirms or varies
the report or reports it shall pass a decree in
accordance with the same as confirmed or
varied; but where the court sets aside the
report or reports it shall either issue a new
commission or make such other order as it
shall think fit.
(emphasis supplied )
10. Rule 4A was not in the Act till it was inserted
by CPC (Amendment) Act 46 of 1999 with effect from
1.7.2002 enabling and empowering the court to issue a
commission in the interest of justice, for expeditious
R.S.A.No.733/2004 13
disposal or on any other reason.
11.Incidentally, another question came up for
consideration as to the applicability of Rule 8 of Order
XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999
with effect from 1.7.2002. Rule 8 empowers the court to
issue a commission for examination of person only on
satisfying the reason embodied under Clause (a) of Rule
8. By the insertion of Rule 4A, wide discretionary power
is invested with the court in the matter of issuance of
commission for examination of any person on the ground
of "interest of justice or for expeditious disposal or any
other reason", by which the restrictions imposed under
Rule 8 of Order XXVI CPC are taken away, virtually
making Rule 8 redundant. We have also taken note of
Rule 7 of Order XXVI wherein the evidence taken shall
"subject to the provision of Rule 8" form part of the
record of the suit. The expression subject to the
provision of Rule 8 " was inserted by the Act of 104 of
1976 with effect from 1.2.1977 prior to the incorporation
R.S.A.No.733/2004 14
of Rule 4A by the Act 46 of 1999 with effect from
1.7.2002. Since Rule 8 became redundant it has no
application in the matter of Rule 7 of Order XXVI.
12. The expression "shall be read in
evidence" incorporated in Rule 4A, the expression "shall
not be read as evidence" incorporated in Rule 8, the
expression "shall be in evidence in the suit and shall form
part of the record" engrafted in sub rule 2 of Rule 10,
the expression "shall be in evidence in the suit" as
incorporated in sub rule 2 of Rule 12 and the expression
"shall confirm or vary or set aside" as incorporated in sub
rule 2 of Rule 14 would clearly show that the requirement
for admitting the report of the Commissioner either on
record or in evidence under Rules 4A, 8, 10(2) and (3),
12 (2) and 14(2) are different. In Rule 14 (2) nothing
mentioned whether it will form part of record or
evidence. But says that the court can confirm or vary or
set aside the report on hearing the objections of the
party concerned. Different yardsticks were applied in the
R.S.A.No.733/2004 15
matter of commissioner's report as to whether it would
form part of evidence or part of record based on the
purpose in which the commission could be issued viz.,
six categories made mentioned above.
13. Further the power of court in dealing with
the commissioner's report are also differently dealt in
Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).
Rule 8 became redundant by virtue of amendment and
incorporation of Rule 4A to Order XXVI. What is
mandated in Rule 4A is that the evidence so recorded by
the commissioner "shall be read in evidence". So the
court is bound to read in evidence what is recorded by
commissioner on examination of witnesses. There is no
provision for setting aside the deposition recorded by the
commissioner or the report submitted by him. It doesn't
say anything about whether it would form part of the
record or evidence in the suit. Sub rule (3) of Rule 14
says that where the Court confirms or varies the report
it shall pass a decree in accordance with the same, but
R.S.A.No.733/2004 16
where the Court sets aside the report or reports, it shall
either issue a new commission or make such other order
as it shall think fit. Going by Sub rule (3) of Rule 14, it is
clear that a commission which was issued for making
partition either be confirmed or be varied or be set aside
as the case may be by the Court and when it is
confirmed or varied the Court is bound to pass a decree
in accordance with the same but when it is set aside a
second commission can be issued for which setting
aside of the earlier report is a condition precedent. In
short, setting aside of an earlier report of the
Commissioner for issuing a second commission mandated
only under sub rule 3 of Rule 14 of Order XXVI CPC.
14. There is no provision anywhere under Rule 1
to 8 enabling the Court to examine the Commissioner
who prepared the report and recorded the deposition of a
witness/witnesses as the case may be, presumably on
the reason that there is no scope for setting aside the
deposition recorded or the report thereof. If the
R.S.A.No.733/2004 17
examination of witnesses is incomplete or a re-
examination of the witnesses by recalling him is
necessitated after the submission of the first report no
doubt a second commission can be issued for that
purpose. The question of setting aside earlier report of
the commissioner does not arise under Order XXVI Rule 1
to 8, more specifically the commissions which were
issued for examination of persons (witnesses) and the
report and deposition recorded by him.
15. There is some slight difference in the
approach made by the legislature in Rule 10(2) and (3)
wherein it is mandated that the report of the
commissioner and the evidence taken by him "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 as to the manner in which he has
made the investigation. Rule 10(3) deals with the power
R.S.A.No.733/2004 18
of the Court to direct further enquiry when there is any
reason to dissatisfy with the proceedings of the
Commissioner. Setting aside of a report or cancelling a
report of Commissioner is conspicuously absent in sub
rule (2) and (3) of Rule 10, but it empowers the Court to
direct "such further enquiry" which stands for a second
enquiry or a subsequent enquiry necessarily through a
second commission.
16. The provisions of Rule 10 is made
applicable in relation to a commission appointed under
Rule 10A, 10B and 10C which are dealing with the
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property by virtue of sub rule 2 attached to 10A, 10B
and 10C. So the very same legal position is applicable in
the matter of commission issued for scientific
investigation, performance of ministerial act and sale of
movable property under Rule 10A, 10B and 10C and a
second commission is possible without setting aside the
R.S.A.No.733/2004 19
earlier one.
17. The very same provision incorporated in
Rule 12(2) of Order XXVI, provides the power to direct
"such further enquiry" when there is reason to dissatisfy
with the report of the commissioner. A second
commission is possible without setting aside the earlier
one in the matter of examination of accounts through
commission.
18. The very similar provision is incorporated
in Rule 12(2) also. The authority to set aside
commission's report or to vary the commission's report is
engrafted only in sub rule (2) of Rule 14 which stands for
commission to make partition. On applying a plain
reading and strict interpretation to Rule 1 to 14 to Order
XXVI, the resultant effect is that a report submitted by
the Commissioner can be varied or set aside by the Court
only under Rule 14 sub rule (2) of Order XXVI, which
stands for commission to make partition and it is a
condition precedent for issuing a second commission.
R.S.A.No.733/2004 20
19. The general provisions i.e. Rule 15 to 18
(B) of Order XXVI do not say anything about the
examination of Commissioner, or issuance of a second
commission or the requirement of setting aside of first
report.
20. Divergent views were expressed by various
High Courts regarding the question whether the earlier
report of the Commissioner should be wiped off before
issuing a second commission.
21. The Madras High Court condemned the
practice of appointing successive Commissioners in
Thottama v. C.S. Subramaniyyan (AIR 1922 Madras
219). That decision was rendered in Rule 14 of Order
XXVI CPC. But going by the decision, it is clear that the
commission was issued not for effecting partition but for
making local investigation and to assess the value of
improvements effected in the mortgaged property. In
that case three successive Commissions were issued for
the very same purpose viz; for assessing the value of
R.S.A.No.733/2004 21
improvements effected in the mortgaged property. The
said practice of issuing commission one after another was
condemned and deprecated. In that decision it appears
that the mandate under Rule 14 of Order XXVI CPC was
wrongly applied.
22. A Division Bench of Madras High Court in
Ambi and another v. Kunhikavamma and others
[(AIR 1929 Madras 661] considered both the
application of Rule 10(3) and Rule 14(3) and discussed
in detail, the scope of "further enquiry" in the following
lines.
The rule is R. 10(3) and lays down that
further enquiry may be ordered when the Court is
for any reason dissatisfied with the proceedings of
the Commission. It may be noted that there is no
provision corresponding to that in R.14 (3) under
which the Court may issue a new commission.
What is contemplated under R.10(3) obviously is a
further enquiry by the Commissioner already
appointed by the Court itself. It may be that where
the Court is so dissatisfied with the whole
proceedings of the commissioner that it thinks it
better to discard the whole record and start afresh,
R.S.A.No.733/2004 22
such a procedure would not be contrary to the
code. That is the line of argument adopted in
Thottamma v.
Subramaniayyan.................................................
........................................................................
...........
Only the decision of the Court that the work had
been so badly done that it had to be done over
again would avail to validate the issue of a second
commission........................................................
........................................................................
............
Only if he is of opinion after hearing both sides
that the report is wholly useless is it open to him to
discard it and issue a fresh commission to cover the
same ground, and in that case the report of the
first commission is as if it had never been and
would not be evidence in the
case.................................................
He even issued an order to appoint a third
commission, whose report no doubt would have
been dealt with in the same way, and so on ad
infinitum. This procedure, besides being in our view
R.S.A.No.733/2004 23
contrary to law, creates considerable
embarrassment to us here.
23. The said decision, though doesn't say
anything with respect to the requirement to set aside the
earlier one before issuing the second one, the practice of
issuing commission one after another is deprecated.
24. Yet another Division Bench of same High
Court in Kunhi Kutti Ali and another v. Mohammad
Haji and others [AIR 1931 Madras 73] took the view
that the earlier commission should be wiped out before
issuing a second commission. The relevant portion is
extracted for reference.
"We have in the first place to remark that the
lower Court should not have issued two separate
commissions to deal with one and the same
subject and to treat the reports of both the
commissioners as evidence in the case. The
exact circumstances in which he came to issue
the second commission do not appear from the
record that has been placed before us. But the
second commission should not have been issued,
unless it was thought that the report of the first
commissioner was not satisfactory in which case
R.S.A.No.733/2004 24
the earlier commission should have been wiped
out altogether and attention should have been
paid only to what was reported by the second
commissioner. Instead of this, the learned
Subordinate Judge has balanced the report of
one commissioner against that of the other and
has expressed a performance for the views of the
first commissioner. In taking this course, he has
acted with great impropriety and contrary to
what is contemplated by O.26.R.10(3)Civil PC."
25. A Division Bench of Patna High Court in
Shib Charan Sahu and others v. Sarda Prasad and
another (AIR 1937, Patna 670) took a different view
holding that the first commissioner's report cannot be
wiped off the record. It is held that when a Court issues
a commission but is dissatisfied with the report of the
Commissioner, another commission can be issued but the
earlier one cannot be wiped of the record. The relevant
portion of the judgment is extracted below for reference.
Commission- Court dissatisfied with report of
commissioner, can issue another commission-
Report of first commissioner however cannot be
R.S.A.No.733/2004 25
wiped out of record.........................................
When a Court issues a commission. But is
dissatisfied with the report of the commissioner
it is entitled to issue another commission and
also for its report, but the report of the first
commissioner cannot be wiped off the record.
In those judgments, the Madras High Court was
endeavouring to correct a very bad tendency on
the part of the Munsifs of the Malabar districts
who appeared to have got into the habit of
sending out simultaneous commissions to
investigate the same issue of fact and then
taking all the commissioner's reports into
consideration and deciding as between these
various reports which of them was preferable;
and this habit of sending out commissions
whether simultaneous or consecutive had
become a nuisance which the Madras High Court
very properly desired to check and put an end
to. I can find in those judgments no statement
of a principle such as is contended for in this
appeal. There is nothing in O.26, R.10, Civil P.C
to justify such a contention. It is in the power of
the Trial Court to send out a second or even a
R.S.A.No.733/2004 26
third commission, and when all the materials
are before the Court it may at the time of
delivering judgment attach very little or no
weight to the first commissioner's report but this
is very far from saying that this amounts to
requiring the first report to be wiped out of the
record and not considered as evidence.
26. A single bench of the same High Court
followed the principle laid down in Shib Charan
Sahu's case (supra) in the following lines.
Order XXVI provides that the Commissioner
appointed under Rule 9 has to return the
evidence recorded by him together with his
report in writing signed by him to the Court.
Sub rule (2) of R.10 of O.XXVI interalia makes
it clear that the report of the Commissioner
and the evidence taken by him shall be
evidence in the suit and shall form part of the
record. Sub rule (3) authorises the Court to
direct such further enquiry to be made as it
thinks fit in case the Court is, for any reason
dissatisfied with the proceedings of the
Commissioner. No provision of the Code,
however, provides for the Commissioner's
report being taken off the record or not being
R.S.A.No.733/2004 27
considered as evidence in any circumstances.
The value to be attached to the report is
however, a different matter. It is obvious that
the Court was either not satisfied with the
proceedings of the first Commission or merely
because of the statements made by the
parties on January 16, 1970 the second
commission was ultimately issued.
27. It was held by a Single Bench of this High
Court in Narayan Guptan v. Madhava Menon (1964
KLT 453) that the issuance of a second Commission
without setting aside the earlier one is only an error, or
defect or irregularity in the proceedings which does not
per se affect the merits of the case.
28. In Moidu v. Lekshmi Amma [(1968)
KLT 699] V.R.Krishna Iyer. J. took the view that a
second commission can be issued only after formally
setting aside the earlier one. The relevant portion of the
said decision is extracted below for reference.
If a second commission is to be issued under
such circumstances, the first report must be
R.S.A.No.733/2004 28
formaly set aside. A conscious irregularity need
not be committed at a stage where the decree
has not been passed, when it can be set
right..............................................................
.......
He rightly relies upon Order xxvi R. 18, Civil
Procedure Code, and the ruling reported in
Achuthan v. Kunhipathumma (1967 KLT. 326)
wherein a Division Bench of this Court has held
that it is a principle of natural justice that it is
only evidence taken in the presence of a party
that can be used against him. For this reason,
according to their Lordships, Order XXVI R. 18
CPC. provides for an opportunity being given to
the parties to be present before the
commissioner in the property at the time of his
inspection. Order XXVI R. 18, CPC. enshrining as
it does a wholesome principle of natural justice,
is treated as imperative. Under Order XXVI R. 18
cpc a direction has to be issued by the Court to
the parties before the issue of a commission and
this direction should be issued after notice to the
parties; at least the commissioner should issue
notice to the parties calling upon them to appear
in the property on the date he proposes to visit
the property for investigation. Unfortunately,
R.S.A.No.733/2004 29
obsessed by a sense of emergency, the
commissioner has admittedly departed from his
obligation under Order XXVI R. 18 CPC. The
consequence is that the Court is constrained to
direct the second commissioner to make
"necessary rectification and additions in the light
of the objections raised by the
defendants.....................................................
.....
Nevertheless, his report has been prepared
ex-parte and that is the vice of it. If a second
commission is to be issued under such
circumstances, the first report must be formally
set aside. Of course, the ruling reported in
Narayana Guptan v. Madhava Menon (1964 KLT.
453).
In Hydrose v. Govindankutty [(1981 KLT
360], the expression "dissatisfied with the
proceedings of the Commissioner" as engrafted
in Rule 10 (3) Order XXVI discussed in detail in
reference to Rule 12 (2) of Order XXVI and it
was held that "sub rule (3) does not specifically
provide for wiping out evidence which is
already part of the record. It only contemplates
a further enquiry and therefore, a further report
R.S.A.No.733/2004 30
which will also become evidence and part of the
record by virtue of sub rule (2). If the Court is
dissatisfied with the proceedings of the first
commissioner, it may not attach much
probative value to his report in deciding the
issue before it. Rule 10(3) does not provide for
setting aside a report and issuing a new or
second commission. It is not the repository of
the court's power to issue a second
commission."
29. The very same view was reiterated by
another single Bench of this Court in Ummer v.
Muhammed [(1983) KLT 258] in the following lines.
The Court can issue a second commission only
under Order 26 Rule 10(3) of the Code. As per the
above provision, the Court should, for any reason,
he dissatisfied with the proceedings of the
commissioner already deputed. The dissatisfaction
can be before the submission of the report or after
that. No question of setting aside the report arises
if the Court was dissatisfied about the work of the
commissioner and issued a second commission
before he submitted the report. Proceedings of the
Commissioner cannot but include the report of the
R.S.A.No.733/2004 31
commissioner, if a report has been submitted. If
the Court is dissatisfied about what the
commissioner did, can the report be salvaged
simply because the report is not specifically made
mention of in rule 10(3). Not only that the Court
gets jurisdiction to issue a second commission only
if the Court for any reason is dissatisfied with the
work of the first commissioner.
Going by the scheme of the relevant provision of
the Code, this is not something which is
contemplated. Simply because rule 10(3) does not
provide for the setting aside of the first commission
report, it cannot be said that a second commission
can be issued without setting aside the first
commission report. If, for example, the Court feels
some more details are to be gathered, the Court
can depute the same commissioner for the same
purpose and in that case, no setting aside of the
report already submitted is necessary.
Order appointing a second commissioner, without
assigning any reasons why the report of the
previous commissioner is ignored, is not only
contrary to the provisions of O.26 R.10((3) but is to
be condemned.
R.S.A.No.733/2004 32
(emphasis supplied)
In that decision, the Single Bench of this Court took the
view that the court can issue a second commission only
under Order XXVI Rule 10(3) CPC. This observation was
made without considering the application of Rule 14(3) of
Order XXVI CPC.
30. The Culcutta High Court in Chinmaya
Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =
2016 KHC 2319] took another view stating that
"although rule 10 of Order XXVI does not expressly
provide for setting aside of a commissioner's report, the
court can do so in exercise of its inherent power."
31. We are in respectful disagreement with
the view taken by the High Court of Calcutta simply on
the reason that the mandate under Rule 10 says that
the report "shall be in evidence in the suit and shall form
part of record". So in no event it can be set aside but the
probative value of the same can be looked into and
R.S.A.No.733/2004 33
assess at the time of hearing of the suit or proceedings.
If it is found that there is no probative value attached to
the said document, the court need not act upon the
document but there is no provision for setting aside the
same under Rule 10 of Order XXVI as the mandate
included therein says otherwise. It is also well settled
that when there is provision to meet a particular situation
in the CPC the court is not expected to exercise
jurisdiction under Section 151 CPC. A strict interpretation
of rule 10 of Order XXVI, would show that there is no
scope or occasion for setting aside the report of the
commissioner which is "shall be in evidence in the suit
and shall form part of the record."
32. In Swami Premananda Bharathi v.
Swami Yogananda Bharathi [(1985 (1) KLT 144)] a
Division Bench of this Court held as follows:
"That the first commissioner's report and
proceedings should be set aside for reasons to be
recorded and then only the court can proceed to
appoint another commissioner to do the work is a
R.S.A.No.733/2004 34
wholesome rule of law based on public policy. The
proceedings in the court below could be expedited
without waste of time and money. We are of the
view, that 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 inquiry.
This is a condition precedent. The provision
contained in Order XXVI Rule 12 C.P.C is "vital".
Strict adherence alone will facilitate speedier,
effective and cheaper administration of justice.
Therefore, the appointment of the second
commissioner and the reports filed by him without
setting aside the first commissioner's report is
wholly illegal and without jurisdiction".
33. The said decision was rendered after
referring the above said decisions but did not go into the
question of different treatment given to Rule 1 to 14 of
Order XXVI in accordance with the purpose to be
achieved, but had taken note of minor difference in the
phraseology in Order XXVI Rule 10 (3) CPC and Order
XXVI Rule 12 CPC. As discussed in earlier paragraph
Rule 12 deals with examination of accounts or
R.S.A.No.733/2004 35
adjustment of accounts through commission. But Rules
10(2) and (3) stand for commission for local
investigation. The power of Court to examine the
Commissioner personally in open court is engrafted in
Rule 10(2) but there is no such power included any
where in Rule 11 or 12. But for saying that the report of
the Commissioner shall be evidence in the suit. The
expression "shall form part of the record" as engrafted in
Rule 10 (2) is conspicuously absent in Rule 12 (2). In
fact Rule 10 and Rule 12 designed and intended for
meeting different situations are having different
applications and impact, though the principles laid down
therein are one and the same.
34. Neither in Rule 10 nor in Rule 12 the power
to set aside the commission report or to wipe out of
record, is included. The report submitted under Rule 12,
though shall be in evidence in the suit, it will not form
part of the record as in the case of Rule 10 wherein it is
specifically stated that the report of the Commissioner
R.S.A.No.733/2004 36
and the evidence taken by him shall form part of the
record. As discussed in earlier paragraphs both Rule 10
and 12 emphasis the need to issue and to direct a
further enquiry when the Court has reason to dissatisfy
with the proceedings of the Commissioner. Necessarily a
further enquiry stands for issuance of a second
Commission. Nowhere it is stated in Rule 10 or 12 the
requirement of setting aside earlier one or to discard the
earlier one. Setting aside of a commission report or
varying a commission report, stands provided only in
Rule 14(2) which stands for issuance of commission to
make partition. The Division Bench did not consider the
purpose for which Rule 10 and 12 was enacted and also
the conspicuous absence of expression "shall form part
of record" in Rule 12 (2) and also absence of provision
either in Rule 10 or in Rule 12 for setting aside or
varying the commission report. What is applied by the
Division Bench in that decision is the public policy to have
a speedier, effective and cheaper administration of
R.S.A.No.733/2004 37
justice and not on the basis of the scheme of Order XXVI
CPC and the rules thereunder. In fact what is held in
that decision is that the Court can appoint a second
commission for further enquiry only if the Court has
reason to dissatisfy with the proceedings and report of
the first commissioner for the reasons stated.
35. It is well settled that a judgment has to be
read in whole to appreciate what actually is rendered, the
ratio/rationale and the principle applied, in order to
understand what is actually given by the judgment/
adjudication thereof. There may be so many
observations/discussions leading to an inference or in
arriving at a conclusion in a judgment. It is not advisable
to pick and choose one or two words or sentences and to
interpret the same apart from what is actually dealt
under the judgment.
36. While interpreting a judgment on the
rationale/ratio applied therein, the observations,
reasons/discussions made therein in arriving at a
R.S.A.No.733/2004 38
conclusion shall be understood not in isolation apart from
the conclusion arrived at. The observations must be read
in the context in which they appear to have been stated
and observation made in the judgment should not be
read in isolation apart from the conclusion arrived
therein. Further the observation shall not be substituted
in place of conclusion arrived at, there cannot be any
uniform application of rules governing interpretation of
statutes and interpretation of judgment/orders. They are
governed by different fields of interpretation.
37. In Union of India and another v. Major
Bahadur Singh [(2006) 1 SCC 368] the Apex Court
settled the following in the matter of interpretation of
judgments.
"Observations of the courts are neither to be
read as Euclid's theorems nor as provisions of the
statute and that too taken out of their context.
These observations must be read in the context in
which they appear to have been stated.
Judgments of the courts are not to be construed as
statutes. To interpret words, phrases and
R.S.A.No.733/2004 39
provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but
the discussions is meant to explain and not to
define."
38. Then again in Nair Service Society v.
State of Kerala [(2007) 4 SCC 1], it was held by the
Apex Court that for construing a judgment, it must be
read in its entirety.
39. In Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group and others
[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the
position stands further reiterated as follows:
"Judgment are required to be read in their entirety.
A judgment cannot be read as a statute.
Construction of a judgment should be made in the
light of the factual matrix involved therein. What is
more important is to see the issues involved therein
and the context wherein observations were made.
Any observations made in a judgment should not be
read in isolation and out of context."
40. While applying the above said principle in
interpreting the judgment in Swami Premananda
R.S.A.No.733/2004 40
Bharathi's case the observation made by the Division
Bench by importing application of public policy in order to
have a speedy disposal, effective time management and
cheaper administration of justice has to be understood in
that context. The conclusion arrived at by the Division
Bench is that "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
commission for further inquiry and that is a condition
precedent. The condition precedent is the dissatisfaction
of the proceedings and report of the first commission.
So, in fact, the position rendered in that decision does
not have any inconsistency with the earlier view taken in
Hydrose v. Govindankutty [1981 KLT 360] and
Ummer v. Muhammed [1983 KLT 258].
41. The question of setting aside of earlier
commission report before issuing a second commission
would arise only in case of commission issued for
effecting partition. In all other cases there is no
R.S.A.No.733/2004 41
necessity, requirement or need to set side the earlier
report, before issuing a second Commission either for the
very same purpose or for some other purposes. No such
mandate is included any where in Rule 1 to 13 to Order
XXVI. At the same time, we cannot shut our eyes into
certain realities which are prevailed in certain part of
Kerala in issuing commissions one after another. There
are cases of issuing three or four commissions for the
very same purpose. Such practice definitely is
detrimental to the speedy disposal of the suit and
cheaper administration of justice. Both are detrimental
to the system and hence has to be deprecated. But at
the same time, it does not mean that the court is not
empowered to issue one or two or three commissions if
the situation warrants so.
42. The restriction of issuing commission one after
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
R.S.A.No.733/2004 42
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
R.S.A.No.733/2004 43
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
R.S.A.No.733/2004 44
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
43. On coming into the impugned judgment,
the first appellate court proceeded in the matter under a
mistaken impression that the second commission can be
issued only after setting aside the first one, relying on
the decision rendered in Swami Premananda Bharathi's
case(supra). Further, the first appellate court committed
a serious error in overlooking the settled position that
when there is mistake or difference in the survey
number, description of boundary will prevail over, the
property. Ext.C1(a) is seen prepared correctly identifying
and locating item (1) property having an extent of 10
cents in Survey No.164/3. The properties lying on
either side belongs to the defendants. The defendants
did not have any case that they had obtained title over
10 cents of property comprised in Survey No. 164/3
under any document of title but simply advanced a case
that the same will form part of their large extent of
property and at the same time they advanced a case
that the description and extent as stated in their
document of title are not correct. So no much reliance
can be given to the case advanced by the defendant that
the 10 cents of property comprised in survey No.164/3
will form part of their large extent. No satisfactory
evidence much less any evidence adduced in that
behalf by the defendant, which was also over looked by
the lower court. On the other hand, the document of title
produced by the plaintiff and the boundary description
entered therein fully and completely tally with Ext.C1 (a)
plan in respect of the 10 cents of property comprised in
survey No.164/3. The only defect in the case advanced
by the plaintiff is that as per their document of title in
Ext.A8, the sub division number was wrongly/ mistakenly
entered for which a correction deed was executed as
Ext.A9. As discussed earlier, even without a correction
deed or correcting the sub division number or the survey
number if it was found that there is a mistake, crept in
the survey number, the court has to look into the
boundary description and the boundaries entered in the
document and to identify and locate the property based
on the boundaries. The said settled principle was
overlooked or rather ignored by the first appellate court.
Added by the fact that the defendant did not have any
consistent case or acceptable version regarding the
acquisition of right title or interest over item No.1
property. On the other hand, on either side of item
No.1, the property belonging to the defendant situated.
No other way is available to the property of plaintiff
scheduled in the suit as item No.2.
44. So the material facts which are relevant for
consideration in the adjudication of dispute involved in
the suit have been not considered either by the trial court
or by the appellate court which has resulted in the
miscarriage of justice which would attract the
interference by this Court and we are doing so, by
setting aside the decree and judgment of both the trial
court and the first appellate court. The matter is
remanded back to the first appellate court to have a fresh
consideration of facts and evidence involved in the case
in accordance with law in force. We are also constrained
to issue direction to the first appellate court to have an
earlier disposal of the appeal within a time schedule of
three months from the date of receipt of copy of this
judgment, as the litigation was started in the year 1988.
No costs. The parties shall appear before the first
appellate court on 5.1.2017.
Sd/-
P.R.Ramachandra Menon
Judge
Sd/-
P.Somarajan
Judge
Print Page
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE P.SOMARAJAN
15TH DAY OF DECEMBER 2016
RSA.No. 733 of 2004
FRANCIS ASSISSI, Vs SR.BREESIYA
This Second Regular Appeal is preferred against the
decree and judgment of Additional District Court, Thrissur
in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in
the original suit in O.S. 2295/1988 on the file of the
Munsiff Court, Thrissur. The appeal had initially come up
before a learned Single Judge of this Court and it was
placed before us doubting the legal position laid down by a
Division Bench of this Court in Swami Premananda
Bharathi v. Swami Yogananda Bharathi [(1985 KLT
144). Earlier, a single bench of this Court in
Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed
doubt about the legal proposition laid down in the Swami
Premananda Bharathi's case but did not opt to refer the
issue to a Division Bench. In Hydrose V. Govindankutty,
[(1981) KLT 360] M.P.Menon.J. took the view that
without setting aside the report submitted by a finger
print expert, another finger print expert can be
appointed. Another decision drawn in Sivaraman v.
Narayanan [(1986) KLT 578] Varghese Kalliyath .J.
took the view that the court has jurisdiction to appoint
the same Commissioner which he omitted to note in the
report already submitted. So the question came up
whether it is permissible to have a second report of
commission without wiping out the earlier one and
doubted the legal preposition laid down in Swami
Premananda Bharathi's case (supra). Hence the
matter placed before us.
2. Before going into the reference, it is
worthful to narrate the factual sequences involved in the
case. The suit in O.S. No. 2295/88 on the file of Principal
Munsiff, Thrissur, was filed for recovery of possession on
the strength of title, mandatory injunction and for
damages. There are two items of property scheduled in
the plaint, which were originally belonged to Chungath
Ouseph, by virtue of sale deed of the year 1954. It was
later on purchased by the plaintiff on 23.11.1988 from
the son of Chungath Ouseph by name Jose. Item No.1
property is the only access to Item No.2 of plaint
schedule. Its eastern end starts from the municipal road
lying north-south direction. A gate was installed at the
entrance by its previous owner. The property lying on
either side of Item No.1 is owned and possessed by the
defendant. When they attempted to demolish the gate, it
has necessitated the institution of the present suit, by
the plaintiffs for recovery of possession, for damages,
for permanent prohibitory injunction and mandatory
injunction to remove the pipeline drawn through Item
No.1 property.
3. The defendant contested the suit alleging
that the plaint Item No.1 is the way used by the convent
as means of access. The defendant has purchased the
properties in the year 1960. The school compound of the
defendant is having an extent of 2 acre 91 cents, which
is situated on the southern side of convent property. But,
the extent of school compound is mistakenly shown in
the document. There was a wooden gate in front of their
property and it was replaced with an iron gate in the year
1968 by the defendants. A pipeline was drawn across
the plaint Item No.1 property. Telephone and electric
lines were also drawn through the disputed property.
The disputed road is the only way leading to the convent
building which faces towards south and the defendants
are in exclusive possession and ownership of plaint
schedule Item No.1. Even if the plaintiff has any right,
title or interest over the property, the same is stood as
lost by adverse possession and limitation. Hence, they
pressed for dismissal of the suit.
4. An additional written statement was also
filed disputing the title of plaintiff over the plaint
schedule Item No.1 property. Plaint schedule Item No.1
is not a property used by the plaintiff as means of access.
The claim of damage is also disputed. The structures
existing in Item No.1 were in existence right from the
year 1949.
5. A second additional written statement was
also filed disputing the description of Item No.1 property
after its amendment. The pipeline was drawn long
before the suit and it is known to the plaintiff.
6. The Trial Court dismissed the suit by its
judgment dated 20.02.1999 against which appeal in A.S.
No.280/1999 was filed before the Additional District
Court, Thrissur and by impugned judgment dated
04.12.2003 the appeal was dismissed against which this
Regular Second Appeal was preferred.
7. Before going into the impugned judgment
and decree, we would like to have an understanding with
respect to the actual impact of Order XXVI CPC and the
Scheme thereof.
8. Going by Order XXVI, it is clear that its
Rules are regulated in accordance with the purpose in
which a commission could be issued viz., (1) to examine
witnesses. (2) for local investigation (3) for scientific
investigation, performance of ministerial act and sale of
movable property (4) to examine accounts and (5) to
make partitions. Rules 1 to 14 are regulated under
different compartments, under Order XXVI, in
accordance with its purpose viz., Rules 1 to 8
incorporated for the purpose of examining the witnesses,
Rule 9 & 10 for the purpose of local investigations, Rule
10 A, 10B and 10 C for the purpose of commissions for
scientific investigation, performance of ministerial act and
sale of movable property (inserted by the amendment
Act of 104 of 1976 with effect from 1.2.1977), Rules 11
& 12 for examining accounts, and Rules 13 & 14 for
making partitions. Rule 15 to 18 B are general provisions
applicable to commissions issued for various purposes.
Rule 19 to 21 deals with issuance of commission at the
instance of foreign tribunals and High Courts.
9. Going by the above said scheme, the
legislature has in its wisdom given headings bifurcating
Rule 1 to 15 in Order XXVI in accordance with their
purposes. The requirements are different which is well
evident from a joint reading of the various Rules 1 to 15
especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule
10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are
extracted below for reference.
Order XXVI
Commissions to examine witnesses
1..........
2..........
3..........
4..........
Rule 4A. Commission for examination of
any person resident within the local
limits of the jurisdiction of the court.-
Notwithstanding anything contained in these
rules, any court may, in the interest of justice
or for the expeditious disposal of the case or
for any other reason, issue commission in any
Suit for the examination, on interrogatories or
otherwise, of any person resident within the
local limits of its jurisdiction, and the
evidence so recorded shall be read in
evidence.
5............
6...........
Rule 7. Return of commission with
depositions of witnesses.- Where a
commission has been duly executed, it shall
be returned, together with the evidence taken
under it, to the court from which it was
issued, unless the order for issuing the
commission has otherwise directed, in which
case the commission shall be returned in
terms of such order; and the commission and
the return thereto and the evidence taken
under it shall (subject to the provisions of rule
8) form part of the record of the suit.
Rule 8. When depositions may be read in
evidence.- Evidence taken under a
commission shall not be read as evidence in
the suit without the consent of the party
against whom the same is offered, unless--
(a) the person who gave the evidence is
beyond the jurisdiction of the court, or dead
or unable from sickness or infirmity to attend
to be personally examined, or exempted from
personal appearance in court, or is a person in
the service of the Government who cannot, in
the opinion of the court, attend without
detriment to the public service, or
(b) the Court in its discretion dispenses with
the proof of any of the circumstances
mentioned in clause (a), and authorises the
evidence of any person being read as
evidence in the suit, notwithstanding proof
that the cause for taking such evidence by
commission has ceased at the time of reading
the same.
Commissions for local investigations
9.......
10 (1)..........
Rule 10(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 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.
Rule 10(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.
Commissions for scientific investigation,
performance of ministerial act and sale of
movable property
10A(1) .............
10A(2) The provisions of rule 10 of this Order
shall, as far as may be, apply in relation to
Commissioner appointed under this rule as
they apply in relation to a Commissioner
appointed under rule 9.
10B(1) .............
10B(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(1) ...........
10C(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(3)......
Commissions to examine accounts
11.........
12..........
Rule 12(2)Proceedings and report to be
evidence--Court may direct further
inquiry--The proceedings and report (if any)
of the Commissioner shall be evidence in the
suit, but where the court has reason to be
dissatisfied with them, it may direct such
further enquiry as it shall think it.
Commissions to make partitions
13..........
14(1).........
Rule 14 (2)The Commissioner shall then
prepare and sign a report or the
Commissioners (where the commission was
issued to more than one person and they
cannot agree) shall prepare and sign separate
reports appointing the share of each party
and distinguishing each share (if so directed
by the said order) by metes and bounds. Such
report or reports shall be annexed to the
commission and transmitted to the Court; and
the Court, after hearing any objections which
the parties may make to the report or reports,
shall confirm, vary or set aside the same.
Rule 14(3) Where the court confirms or varies
the report or reports it shall pass a decree in
accordance with the same as confirmed or
varied; but where the court sets aside the
report or reports it shall either issue a new
commission or make such other order as it
shall think fit.
(emphasis supplied )
10. Rule 4A was not in the Act till it was inserted
by CPC (Amendment) Act 46 of 1999 with effect from
1.7.2002 enabling and empowering the court to issue a
commission in the interest of justice, for expeditious
disposal or on any other reason.
11.Incidentally, another question came up for
consideration as to the applicability of Rule 8 of Order
XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999
with effect from 1.7.2002. Rule 8 empowers the court to
issue a commission for examination of person only on
satisfying the reason embodied under Clause (a) of Rule
8. By the insertion of Rule 4A, wide discretionary power
is invested with the court in the matter of issuance of
commission for examination of any person on the ground
of "interest of justice or for expeditious disposal or any
other reason", by which the restrictions imposed under
Rule 8 of Order XXVI CPC are taken away, virtually
making Rule 8 redundant. We have also taken note of
Rule 7 of Order XXVI wherein the evidence taken shall
"subject to the provision of Rule 8" form part of the
record of the suit. The expression subject to the
provision of Rule 8 " was inserted by the Act of 104 of
1976 with effect from 1.2.1977 prior to the incorporation
of Rule 4A by the Act 46 of 1999 with effect from
1.7.2002. Since Rule 8 became redundant it has no
application in the matter of Rule 7 of Order XXVI.
12. The expression "shall be read in
evidence" incorporated in Rule 4A, the expression "shall
not be read as evidence" incorporated in Rule 8, the
expression "shall be in evidence in the suit and shall form
part of the record" engrafted in sub rule 2 of Rule 10,
the expression "shall be in evidence in the suit" as
incorporated in sub rule 2 of Rule 12 and the expression
"shall confirm or vary or set aside" as incorporated in sub
rule 2 of Rule 14 would clearly show that the requirement
for admitting the report of the Commissioner either on
record or in evidence under Rules 4A, 8, 10(2) and (3),
12 (2) and 14(2) are different. In Rule 14 (2) nothing
mentioned whether it will form part of record or
evidence. But says that the court can confirm or vary or
set aside the report on hearing the objections of the
party concerned. Different yardsticks were applied in the
matter of commissioner's report as to whether it would
form part of evidence or part of record based on the
purpose in which the commission could be issued viz.,
six categories made mentioned above.
13. Further the power of court in dealing with
the commissioner's report are also differently dealt in
Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).
Rule 8 became redundant by virtue of amendment and
incorporation of Rule 4A to Order XXVI. What is
mandated in Rule 4A is that the evidence so recorded by
the commissioner "shall be read in evidence". So the
court is bound to read in evidence what is recorded by
commissioner on examination of witnesses. There is no
provision for setting aside the deposition recorded by the
commissioner or the report submitted by him. It doesn't
say anything about whether it would form part of the
record or evidence in the suit. Sub rule (3) of Rule 14
says that where the Court confirms or varies the report
it shall pass a decree in accordance with the same, but
where the Court sets aside the report or reports, it shall
either issue a new commission or make such other order
as it shall think fit. Going by Sub rule (3) of Rule 14, it is
clear that a commission which was issued for making
partition either be confirmed or be varied or be set aside
as the case may be by the Court and when it is
confirmed or varied the Court is bound to pass a decree
in accordance with the same but when it is set aside a
second commission can be issued for which setting
aside of the earlier report is a condition precedent. In
short, setting aside of an earlier report of the
Commissioner for issuing a second commission mandated
only under sub rule 3 of Rule 14 of Order XXVI CPC.
14. There is no provision anywhere under Rule 1
to 8 enabling the Court to examine the Commissioner
who prepared the report and recorded the deposition of a
witness/witnesses as the case may be, presumably on
the reason that there is no scope for setting aside the
deposition recorded or the report thereof. If the
examination of witnesses is incomplete or a re-
examination of the witnesses by recalling him is
necessitated after the submission of the first report no
doubt a second commission can be issued for that
purpose. The question of setting aside earlier report of
the commissioner does not arise under Order XXVI Rule 1
to 8, more specifically the commissions which were
issued for examination of persons (witnesses) and the
report and deposition recorded by him.
15. There is some slight difference in the
approach made by the legislature in Rule 10(2) and (3)
wherein it is mandated that the report of the
commissioner and the evidence taken by him "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 as to the manner in which he has
made the investigation. Rule 10(3) deals with the power
of the Court to direct further enquiry when there is any
reason to dissatisfy with the proceedings of the
Commissioner. Setting aside of a report or cancelling a
report of Commissioner is conspicuously absent in sub
rule (2) and (3) of Rule 10, but it empowers the Court to
direct "such further enquiry" which stands for a second
enquiry or a subsequent enquiry necessarily through a
second commission.
16. The provisions of Rule 10 is made
applicable in relation to a commission appointed under
Rule 10A, 10B and 10C which are dealing with the
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property by virtue of sub rule 2 attached to 10A, 10B
and 10C. So the very same legal position is applicable in
the matter of commission issued for scientific
investigation, performance of ministerial act and sale of
movable property under Rule 10A, 10B and 10C and a
second commission is possible without setting aside the
earlier one.
17. The very same provision incorporated in
Rule 12(2) of Order XXVI, provides the power to direct
"such further enquiry" when there is reason to dissatisfy
with the report of the commissioner. A second
commission is possible without setting aside the earlier
one in the matter of examination of accounts through
commission.
18. The very similar provision is incorporated
in Rule 12(2) also. The authority to set aside
commission's report or to vary the commission's report is
engrafted only in sub rule (2) of Rule 14 which stands for
commission to make partition. On applying a plain
reading and strict interpretation to Rule 1 to 14 to Order
XXVI, the resultant effect is that a report submitted by
the Commissioner can be varied or set aside by the Court
only under Rule 14 sub rule (2) of Order XXVI, which
stands for commission to make partition and it is a
condition precedent for issuing a second commission.
19. The general provisions i.e. Rule 15 to 18
(B) of Order XXVI do not say anything about the
examination of Commissioner, or issuance of a second
commission or the requirement of setting aside of first
report.
20. Divergent views were expressed by various
High Courts regarding the question whether the earlier
report of the Commissioner should be wiped off before
issuing a second commission.
21. The Madras High Court condemned the
practice of appointing successive Commissioners in
Thottama v. C.S. Subramaniyyan (AIR 1922 Madras
219). That decision was rendered in Rule 14 of Order
XXVI CPC. But going by the decision, it is clear that the
commission was issued not for effecting partition but for
making local investigation and to assess the value of
improvements effected in the mortgaged property. In
that case three successive Commissions were issued for
the very same purpose viz; for assessing the value of
improvements effected in the mortgaged property. The
said practice of issuing commission one after another was
condemned and deprecated. In that decision it appears
that the mandate under Rule 14 of Order XXVI CPC was
wrongly applied.
22. A Division Bench of Madras High Court in
Ambi and another v. Kunhikavamma and others
[(AIR 1929 Madras 661] considered both the
application of Rule 10(3) and Rule 14(3) and discussed
in detail, the scope of "further enquiry" in the following
lines.
The rule is R. 10(3) and lays down that
further enquiry may be ordered when the Court is
for any reason dissatisfied with the proceedings of
the Commission. It may be noted that there is no
provision corresponding to that in R.14 (3) under
which the Court may issue a new commission.
What is contemplated under R.10(3) obviously is a
further enquiry by the Commissioner already
appointed by the Court itself. It may be that where
the Court is so dissatisfied with the whole
proceedings of the commissioner that it thinks it
better to discard the whole record and start afresh,
such a procedure would not be contrary to the
code. That is the line of argument adopted in
Thottamma v.
Subramaniayyan.................................................
........................................................................
...........
Only the decision of the Court that the work had
been so badly done that it had to be done over
again would avail to validate the issue of a second
commission........................................................
........................................................................
............
Only if he is of opinion after hearing both sides
that the report is wholly useless is it open to him to
discard it and issue a fresh commission to cover the
same ground, and in that case the report of the
first commission is as if it had never been and
would not be evidence in the
case.................................................
He even issued an order to appoint a third
commission, whose report no doubt would have
been dealt with in the same way, and so on ad
infinitum. This procedure, besides being in our view
contrary to law, creates considerable
embarrassment to us here.
23. The said decision, though doesn't say
anything with respect to the requirement to set aside the
earlier one before issuing the second one, the practice of
issuing commission one after another is deprecated.
24. Yet another Division Bench of same High
Court in Kunhi Kutti Ali and another v. Mohammad
Haji and others [AIR 1931 Madras 73] took the view
that the earlier commission should be wiped out before
issuing a second commission. The relevant portion is
extracted for reference.
"We have in the first place to remark that the
lower Court should not have issued two separate
commissions to deal with one and the same
subject and to treat the reports of both the
commissioners as evidence in the case. The
exact circumstances in which he came to issue
the second commission do not appear from the
record that has been placed before us. But the
second commission should not have been issued,
unless it was thought that the report of the first
commissioner was not satisfactory in which case
the earlier commission should have been wiped
out altogether and attention should have been
paid only to what was reported by the second
commissioner. Instead of this, the learned
Subordinate Judge has balanced the report of
one commissioner against that of the other and
has expressed a performance for the views of the
first commissioner. In taking this course, he has
acted with great impropriety and contrary to
what is contemplated by O.26.R.10(3)Civil PC."
25. A Division Bench of Patna High Court in
Shib Charan Sahu and others v. Sarda Prasad and
another (AIR 1937, Patna 670) took a different view
holding that the first commissioner's report cannot be
wiped off the record. It is held that when a Court issues
a commission but is dissatisfied with the report of the
Commissioner, another commission can be issued but the
earlier one cannot be wiped of the record. The relevant
portion of the judgment is extracted below for reference.
Commission- Court dissatisfied with report of
commissioner, can issue another commission-
Report of first commissioner however cannot be
wiped out of record.........................................
When a Court issues a commission. But is
dissatisfied with the report of the commissioner
it is entitled to issue another commission and
also for its report, but the report of the first
commissioner cannot be wiped off the record.
In those judgments, the Madras High Court was
endeavouring to correct a very bad tendency on
the part of the Munsifs of the Malabar districts
who appeared to have got into the habit of
sending out simultaneous commissions to
investigate the same issue of fact and then
taking all the commissioner's reports into
consideration and deciding as between these
various reports which of them was preferable;
and this habit of sending out commissions
whether simultaneous or consecutive had
become a nuisance which the Madras High Court
very properly desired to check and put an end
to. I can find in those judgments no statement
of a principle such as is contended for in this
appeal. There is nothing in O.26, R.10, Civil P.C
to justify such a contention. It is in the power of
the Trial Court to send out a second or even a
third commission, and when all the materials
are before the Court it may at the time of
delivering judgment attach very little or no
weight to the first commissioner's report but this
is very far from saying that this amounts to
requiring the first report to be wiped out of the
record and not considered as evidence.
26. A single bench of the same High Court
followed the principle laid down in Shib Charan
Sahu's case (supra) in the following lines.
Order XXVI provides that the Commissioner
appointed under Rule 9 has to return the
evidence recorded by him together with his
report in writing signed by him to the Court.
Sub rule (2) of R.10 of O.XXVI interalia makes
it clear that the report of the Commissioner
and the evidence taken by him shall be
evidence in the suit and shall form part of the
record. Sub rule (3) authorises the Court to
direct such further enquiry to be made as it
thinks fit in case the Court is, for any reason
dissatisfied with the proceedings of the
Commissioner. No provision of the Code,
however, provides for the Commissioner's
report being taken off the record or not being
considered as evidence in any circumstances.
The value to be attached to the report is
however, a different matter. It is obvious that
the Court was either not satisfied with the
proceedings of the first Commission or merely
because of the statements made by the
parties on January 16, 1970 the second
commission was ultimately issued.
27. It was held by a Single Bench of this High
Court in Narayan Guptan v. Madhava Menon (1964
KLT 453) that the issuance of a second Commission
without setting aside the earlier one is only an error, or
defect or irregularity in the proceedings which does not
per se affect the merits of the case.
28. In Moidu v. Lekshmi Amma [(1968)
KLT 699] V.R.Krishna Iyer. J. took the view that a
second commission can be issued only after formally
setting aside the earlier one. The relevant portion of the
said decision is extracted below for reference.
If a second commission is to be issued under
such circumstances, the first report must be
formaly set aside. A conscious irregularity need
not be committed at a stage where the decree
has not been passed, when it can be set
right..............................................................
.......
He rightly relies upon Order xxvi R. 18, Civil
Procedure Code, and the ruling reported in
Achuthan v. Kunhipathumma (1967 KLT. 326)
wherein a Division Bench of this Court has held
that it is a principle of natural justice that it is
only evidence taken in the presence of a party
that can be used against him. For this reason,
according to their Lordships, Order XXVI R. 18
CPC. provides for an opportunity being given to
the parties to be present before the
commissioner in the property at the time of his
inspection. Order XXVI R. 18, CPC. enshrining as
it does a wholesome principle of natural justice,
is treated as imperative. Under Order XXVI R. 18
cpc a direction has to be issued by the Court to
the parties before the issue of a commission and
this direction should be issued after notice to the
parties; at least the commissioner should issue
notice to the parties calling upon them to appear
in the property on the date he proposes to visit
the property for investigation. Unfortunately,
obsessed by a sense of emergency, the
commissioner has admittedly departed from his
obligation under Order XXVI R. 18 CPC. The
consequence is that the Court is constrained to
direct the second commissioner to make
"necessary rectification and additions in the light
of the objections raised by the
defendants.....................................................
.....
Nevertheless, his report has been prepared
ex-parte and that is the vice of it. If a second
commission is to be issued under such
circumstances, the first report must be formally
set aside. Of course, the ruling reported in
Narayana Guptan v. Madhava Menon (1964 KLT.
453).
In Hydrose v. Govindankutty [(1981 KLT
360], the expression "dissatisfied with the
proceedings of the Commissioner" as engrafted
in Rule 10 (3) Order XXVI discussed in detail in
reference to Rule 12 (2) of Order XXVI and it
was held that "sub rule (3) does not specifically
provide for wiping out evidence which is
already part of the record. It only contemplates
a further enquiry and therefore, a further report
which will also become evidence and part of the
record by virtue of sub rule (2). If the Court is
dissatisfied with the proceedings of the first
commissioner, it may not attach much
probative value to his report in deciding the
issue before it. Rule 10(3) does not provide for
setting aside a report and issuing a new or
second commission. It is not the repository of
the court's power to issue a second
commission."
29. The very same view was reiterated by
another single Bench of this Court in Ummer v.
Muhammed [(1983) KLT 258] in the following lines.
The Court can issue a second commission only
under Order 26 Rule 10(3) of the Code. As per the
above provision, the Court should, for any reason,
he dissatisfied with the proceedings of the
commissioner already deputed. The dissatisfaction
can be before the submission of the report or after
that. No question of setting aside the report arises
if the Court was dissatisfied about the work of the
commissioner and issued a second commission
before he submitted the report. Proceedings of the
Commissioner cannot but include the report of the
commissioner, if a report has been submitted. If
the Court is dissatisfied about what the
commissioner did, can the report be salvaged
simply because the report is not specifically made
mention of in rule 10(3). Not only that the Court
gets jurisdiction to issue a second commission only
if the Court for any reason is dissatisfied with the
work of the first commissioner.
Going by the scheme of the relevant provision of
the Code, this is not something which is
contemplated. Simply because rule 10(3) does not
provide for the setting aside of the first commission
report, it cannot be said that a second commission
can be issued without setting aside the first
commission report. If, for example, the Court feels
some more details are to be gathered, the Court
can depute the same commissioner for the same
purpose and in that case, no setting aside of the
report already submitted is necessary.
Order appointing a second commissioner, without
assigning any reasons why the report of the
previous commissioner is ignored, is not only
contrary to the provisions of O.26 R.10((3) but is to
be condemned.
(emphasis supplied)
In that decision, the Single Bench of this Court took the
view that the court can issue a second commission only
under Order XXVI Rule 10(3) CPC. This observation was
made without considering the application of Rule 14(3) of
Order XXVI CPC.
30. The Culcutta High Court in Chinmaya
Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =
2016 KHC 2319] took another view stating that
"although rule 10 of Order XXVI does not expressly
provide for setting aside of a commissioner's report, the
court can do so in exercise of its inherent power."
31. We are in respectful disagreement with
the view taken by the High Court of Calcutta simply on
the reason that the mandate under Rule 10 says that
the report "shall be in evidence in the suit and shall form
part of record". So in no event it can be set aside but the
probative value of the same can be looked into and
assess at the time of hearing of the suit or proceedings.
If it is found that there is no probative value attached to
the said document, the court need not act upon the
document but there is no provision for setting aside the
same under Rule 10 of Order XXVI as the mandate
included therein says otherwise. It is also well settled
that when there is provision to meet a particular situation
in the CPC the court is not expected to exercise
jurisdiction under Section 151 CPC. A strict interpretation
of rule 10 of Order XXVI, would show that there is no
scope or occasion for setting aside the report of the
commissioner which is "shall be in evidence in the suit
and shall form part of the record."
32. In Swami Premananda Bharathi v.
Swami Yogananda Bharathi [(1985 (1) KLT 144)] a
Division Bench of this Court held as follows:
"That the first commissioner's report and
proceedings should be set aside for reasons to be
recorded and then only the court can proceed to
appoint another commissioner to do the work is a
wholesome rule of law based on public policy. The
proceedings in the court below could be expedited
without waste of time and money. We are of the
view, that 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 inquiry.
This is a condition precedent. The provision
contained in Order XXVI Rule 12 C.P.C is "vital".
Strict adherence alone will facilitate speedier,
effective and cheaper administration of justice.
Therefore, the appointment of the second
commissioner and the reports filed by him without
setting aside the first commissioner's report is
wholly illegal and without jurisdiction".
33. The said decision was rendered after
referring the above said decisions but did not go into the
question of different treatment given to Rule 1 to 14 of
Order XXVI in accordance with the purpose to be
achieved, but had taken note of minor difference in the
phraseology in Order XXVI Rule 10 (3) CPC and Order
XXVI Rule 12 CPC. As discussed in earlier paragraph
Rule 12 deals with examination of accounts or
adjustment of accounts through commission. But Rules
10(2) and (3) stand for commission for local
investigation. The power of Court to examine the
Commissioner personally in open court is engrafted in
Rule 10(2) but there is no such power included any
where in Rule 11 or 12. But for saying that the report of
the Commissioner shall be evidence in the suit. The
expression "shall form part of the record" as engrafted in
Rule 10 (2) is conspicuously absent in Rule 12 (2). In
fact Rule 10 and Rule 12 designed and intended for
meeting different situations are having different
applications and impact, though the principles laid down
therein are one and the same.
34. Neither in Rule 10 nor in Rule 12 the power
to set aside the commission report or to wipe out of
record, is included. The report submitted under Rule 12,
though shall be in evidence in the suit, it will not form
part of the record as in the case of Rule 10 wherein it is
specifically stated that the report of the Commissioner
and the evidence taken by him shall form part of the
record. As discussed in earlier paragraphs both Rule 10
and 12 emphasis the need to issue and to direct a
further enquiry when the Court has reason to dissatisfy
with the proceedings of the Commissioner. Necessarily a
further enquiry stands for issuance of a second
Commission. Nowhere it is stated in Rule 10 or 12 the
requirement of setting aside earlier one or to discard the
earlier one. Setting aside of a commission report or
varying a commission report, stands provided only in
Rule 14(2) which stands for issuance of commission to
make partition. The Division Bench did not consider the
purpose for which Rule 10 and 12 was enacted and also
the conspicuous absence of expression "shall form part
of record" in Rule 12 (2) and also absence of provision
either in Rule 10 or in Rule 12 for setting aside or
varying the commission report. What is applied by the
Division Bench in that decision is the public policy to have
a speedier, effective and cheaper administration of
justice and not on the basis of the scheme of Order XXVI
CPC and the rules thereunder. In fact what is held in
that decision is that the Court can appoint a second
commission for further enquiry only if the Court has
reason to dissatisfy with the proceedings and report of
the first commissioner for the reasons stated.
35. It is well settled that a judgment has to be
read in whole to appreciate what actually is rendered, the
ratio/rationale and the principle applied, in order to
understand what is actually given by the judgment/
adjudication thereof. There may be so many
observations/discussions leading to an inference or in
arriving at a conclusion in a judgment. It is not advisable
to pick and choose one or two words or sentences and to
interpret the same apart from what is actually dealt
under the judgment.
36. While interpreting a judgment on the
rationale/ratio applied therein, the observations,
reasons/discussions made therein in arriving at a
conclusion shall be understood not in isolation apart from
the conclusion arrived at. The observations must be read
in the context in which they appear to have been stated
and observation made in the judgment should not be
read in isolation apart from the conclusion arrived
therein. Further the observation shall not be substituted
in place of conclusion arrived at, there cannot be any
uniform application of rules governing interpretation of
statutes and interpretation of judgment/orders. They are
governed by different fields of interpretation.
37. In Union of India and another v. Major
Bahadur Singh [(2006) 1 SCC 368] the Apex Court
settled the following in the matter of interpretation of
judgments.
"Observations of the courts are neither to be
read as Euclid's theorems nor as provisions of the
statute and that too taken out of their context.
These observations must be read in the context in
which they appear to have been stated.
Judgments of the courts are not to be construed as
statutes. To interpret words, phrases and
provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but
the discussions is meant to explain and not to
define."
38. Then again in Nair Service Society v.
State of Kerala [(2007) 4 SCC 1], it was held by the
Apex Court that for construing a judgment, it must be
read in its entirety.
39. In Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group and others
[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the
position stands further reiterated as follows:
"Judgment are required to be read in their entirety.
A judgment cannot be read as a statute.
Construction of a judgment should be made in the
light of the factual matrix involved therein. What is
more important is to see the issues involved therein
and the context wherein observations were made.
Any observations made in a judgment should not be
read in isolation and out of context."
40. While applying the above said principle in
interpreting the judgment in Swami Premananda
Bharathi's case the observation made by the Division
Bench by importing application of public policy in order to
have a speedy disposal, effective time management and
cheaper administration of justice has to be understood in
that context. The conclusion arrived at by the Division
Bench is that "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
commission for further inquiry and that is a condition
precedent. The condition precedent is the dissatisfaction
of the proceedings and report of the first commission.
So, in fact, the position rendered in that decision does
not have any inconsistency with the earlier view taken in
Hydrose v. Govindankutty [1981 KLT 360] and
Ummer v. Muhammed [1983 KLT 258].
41. The question of setting aside of earlier
commission report before issuing a second commission
would arise only in case of commission issued for
effecting partition. In all other cases there is no
necessity, requirement or need to set side the earlier
report, before issuing a second Commission either for the
very same purpose or for some other purposes. No such
mandate is included any where in Rule 1 to 13 to Order
XXVI. At the same time, we cannot shut our eyes into
certain realities which are prevailed in certain part of
Kerala in issuing commissions one after another. There
are cases of issuing three or four commissions for the
very same purpose. Such practice definitely is
detrimental to the speedy disposal of the suit and
cheaper administration of justice. Both are detrimental
to the system and hence has to be deprecated. But at
the same time, it does not mean that the court is not
empowered to issue one or two or three commissions if
the situation warrants so.
42. The restriction of issuing commission one after
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
43. On coming into the impugned judgment,
the first appellate court proceeded in the matter under a
mistaken impression that the second commission can be
issued only after setting aside the first one, relying on
the decision rendered in Swami Premananda Bharathi's
case(supra). Further, the first appellate court committed
a serious error in overlooking the settled position that
when there is mistake or difference in the survey
number, description of boundary will prevail over, the
property. Ext.C1(a) is seen prepared correctly identifying
and locating item (1) property having an extent of 10
cents in Survey No.164/3. The properties lying on
either side belongs to the defendants. The defendants
did not have any case that they had obtained title over
10 cents of property comprised in Survey No. 164/3
under any document of title but simply advanced a case
that the same will form part of their large extent of
property and at the same time they advanced a case
that the description and extent as stated in their
document of title are not correct. So no much reliance
can be given to the case advanced by the defendant that
the 10 cents of property comprised in survey No.164/3
will form part of their large extent. No satisfactory
evidence much less any evidence adduced in that
behalf by the defendant, which was also over looked by
the lower court. On the other hand, the document of title
produced by the plaintiff and the boundary description
entered therein fully and completely tally with Ext.C1 (a)
plan in respect of the 10 cents of property comprised in
survey No.164/3. The only defect in the case advanced
by the plaintiff is that as per their document of title in
Ext.A8, the sub division number was wrongly/ mistakenly
entered for which a correction deed was executed as
Ext.A9. As discussed earlier, even without a correction
deed or correcting the sub division number or the survey
number if it was found that there is a mistake, crept in
R.S.A.No.733/2004 47
the survey number, the court has to look into the
boundary description and the boundaries entered in the
document and to identify and locate the property based
on the boundaries. The said settled principle was
overlooked or rather ignored by the first appellate court.
Added by the fact that the defendant did not have any
consistent case or acceptable version regarding the
acquisition of right title or interest over item No.1
property. On the other hand, on either side of item
No.1, the property belonging to the defendant situated.
No other way is available to the property of plaintiff
scheduled in the suit as item No.2.
44. So the material facts which are relevant for
consideration in the adjudication of dispute involved in
the suit have been not considered either by the trial court
or by the appellate court which has resulted in the
miscarriage of justice which would attract the
interference by this Court and we are doing so, by
setting aside the decree and judgment of both the trial
R.S.A.No.733/2004 48
court and the first appellate court. The matter is
remanded back to the first appellate court to have a fresh
consideration of facts and evidence involved in the case
in accordance with law in force. We are also constrained
to issue direction to the first appellate court to have an
earlier disposal of the appeal within a time schedule of
three months from the date of receipt of copy of this
judgment, as the litigation was started in the year 1988.
No costs. The parties shall appear before the first
appellate court on 5.1.2017.
Sd/-
P.R.Ramachandra Menon
Judge
Sd/-
P.Somarajan
Judge
al/-
True copy
P.S to Judge
R.S.A.No.733/2004 49
fair
this is copied from the chamber of P.Somarajan(J) as on
19.12.2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938
RSA.No. 733 of 2004 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN AS 280/1999 of III ADDITIONAL DISTRICT
COURT (ADHOC), THRISSUR DATED 04-12-2003
AGAINST THE ORDER/JUDGMENT IN OS 2295/1988 of PRINCIPAL MUNSIFF
COURT,THRISSUR DATED 20-02-1999
APPELLANT/APPELLANT/PLAINTIFF::
-------------------------------
FRANCIS ASSISSI, S/O.THATTILMANDI JOSEPH,
RESIDING AT ANTHIKKAD VILLAGE, THRISSUR TALUK.
BY ADVS.SRI.T.C.SURESH MENON
SMT.G.GEETHISHA
SMT.M.R.VALSA
RESPONDENTS/RESPONDENTS/DEFENDANTS::
--------------------------------------
1. SR.BREESIYA
MOTHER SUPERIOR, INFANT JESUS CONVENT,,
ARANATTUKARA VILLAGE, THRISSUR TALUK.
2. SR.LISIYA,
ASSISTANT MOTHER SUPERIOR,
INFANT JESUS CONVENT,, ARANATTUKARA VILLAGE,
THRISSUR TALUK.
3. INFANT JESUS CONVENT,
ARANATTUKARA VILLAGE, THRISSUR TALUK,,
REPRESENTED BY ITS MOTHER SUPERIOR.
R,R1 TO R3 BY ADV. SRI.M.GEORGE THOMAS
R,R1 TO R3 BY ADV. SRI.P.VIJAYA BHANU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
al/-
P.R.Ramachandra Menon 'CR'
&
P.Somarajan, JJ.
====================================
R.S.A.No.733 of 2004
====================================
Dated this the 15 thday of December, 2016.
JUDGMENT
P.Somarajan, J.
This Second Regular Appeal is preferred against the
decree and judgment of Additional District Court, Thrissur
in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in
the original suit in O.S. 2295/1988 on the file of the
Munsiff Court, Thrissur. The appeal had initially come up
before a learned Single Judge of this Court and it was
placed before us doubting the legal position laid down by a
Division Bench of this Court in Swami Premananda
Bharathi v. Swami Yogananda Bharathi [(1985 KLT
144). Earlier, a single bench of this Court in
Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed
doubt about the legal proposition laid down in the Swami
Premananda Bharathi's case but did not opt to refer the
issue to a Division Bench. In Hydrose V. Govindankutty,
R.S.A.No.733/2004 2
[(1981) KLT 360] M.P.Menon.J. took the view that
without setting aside the report submitted by a finger
print expert, another finger print expert can be
appointed. Another decision drawn in Sivaraman v.
Narayanan [(1986) KLT 578] Varghese Kalliyath .J.
took the view that the court has jurisdiction to appoint
the same Commissioner which he omitted to note in the
report already submitted. So the question came up
whether it is permissible to have a second report of
commission without wiping out the earlier one and
doubted the legal preposition laid down in Swami
Premananda Bharathi's case (supra). Hence the
matter placed before us.
2. Before going into the reference, it is
worthful to narrate the factual sequences involved in the
case. The suit in O.S. No. 2295/88 on the file of Principal
Munsiff, Thrissur, was filed for recovery of possession on
the strength of title, mandatory injunction and for
damages. There are two items of property scheduled in
R.S.A.No.733/2004 3
the plaint, which were originally belonged to Chungath
Ouseph, by virtue of sale deed of the year 1954. It was
later on purchased by the plaintiff on 23.11.1988 from
the son of Chungath Ouseph by name Jose. Item No.1
property is the only access to Item No.2 of plaint
schedule. Its eastern end starts from the municipal road
lying north-south direction. A gate was installed at the
entrance by its previous owner. The property lying on
either side of Item No.1 is owned and possessed by the
defendant. When they attempted to demolish the gate, it
has necessitated the institution of the present suit, by
the plaintiffs for recovery of possession, for damages,
for permanent prohibitory injunction and mandatory
injunction to remove the pipeline drawn through Item
No.1 property.
3. The defendant contested the suit alleging
that the plaint Item No.1 is the way used by the convent
as means of access. The defendant has purchased the
properties in the year 1960. The school compound of the
R.S.A.No.733/2004 4
defendant is having an extent of 2 acre 91 cents, which
is situated on the southern side of convent property. But,
the extent of school compound is mistakenly shown in
the document. There was a wooden gate in front of their
property and it was replaced with an iron gate in the year
1968 by the defendants. A pipeline was drawn across
the plaint Item No.1 property. Telephone and electric
lines were also drawn through the disputed property.
The disputed road is the only way leading to the convent
building which faces towards south and the defendants
are in exclusive possession and ownership of plaint
schedule Item No.1. Even if the plaintiff has any right,
title or interest over the property, the same is stood as
lost by adverse possession and limitation. Hence, they
pressed for dismissal of the suit.
4. An additional written statement was also
filed disputing the title of plaintiff over the plaint
schedule Item No.1 property. Plaint schedule Item No.1
is not a property used by the plaintiff as means of access.
R.S.A.No.733/2004 5
The claim of damage is also disputed. The structures
existing in Item No.1 were in existence right from the
year 1949.
5. A second additional written statement was
also filed disputing the description of Item No.1 property
after its amendment. The pipeline was drawn long
before the suit and it is known to the plaintiff.
6. The Trial Court dismissed the suit by its
judgment dated 20.02.1999 against which appeal in A.S.
No.280/1999 was filed before the Additional District
Court, Thrissur and by impugned judgment dated
04.12.2003 the appeal was dismissed against which this
Regular Second Appeal was preferred.
7. Before going into the impugned judgment
and decree, we would like to have an understanding with
respect to the actual impact of Order XXVI CPC and the
Scheme thereof.
8. Going by Order XXVI, it is clear that its
Rules are regulated in accordance with the purpose in
R.S.A.No.733/2004 6
which a commission could be issued viz., (1) to examine
witnesses. (2) for local investigation (3) for scientific
investigation, performance of ministerial act and sale of
movable property (4) to examine accounts and (5) to
make partitions. Rules 1 to 14 are regulated under
different compartments, under Order XXVI, in
accordance with its purpose viz., Rules 1 to 8
incorporated for the purpose of examining the witnesses,
Rule 9 & 10 for the purpose of local investigations, Rule
10 A, 10B and 10 C for the purpose of commissions for
scientific investigation, performance of ministerial act and
sale of movable property (inserted by the amendment
Act of 104 of 1976 with effect from 1.2.1977), Rules 11
& 12 for examining accounts, and Rules 13 & 14 for
making partitions. Rule 15 to 18 B are general provisions
applicable to commissions issued for various purposes.
Rule 19 to 21 deals with issuance of commission at the
instance of foreign tribunals and High Courts.
9. Going by the above said scheme, the
R.S.A.No.733/2004 7
legislature has in its wisdom given headings bifurcating
Rule 1 to 15 in Order XXVI in accordance with their
purposes. The requirements are different which is well
evident from a joint reading of the various Rules 1 to 15
especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule
10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are
extracted below for reference.
Order XXVI
Commissions to examine witnesses
1..........
2..........
3..........
4..........
Rule 4A. Commission for examination of
any person resident within the local
limits of the jurisdiction of the court.-
Notwithstanding anything contained in these
rules, any court may, in the interest of justice
or for the expeditious disposal of the case or
for any other reason, issue commission in any
Suit for the examination, on interrogatories or
otherwise, of any person resident within the
R.S.A.No.733/2004 8
local limits of its jurisdiction, and the
evidence so recorded shall be read in
evidence.
5............
6...........
Rule 7. Return of commission with
depositions of witnesses.- Where a
commission has been duly executed, it shall
be returned, together with the evidence taken
under it, to the court from which it was
issued, unless the order for issuing the
commission has otherwise directed, in which
case the commission shall be returned in
terms of such order; and the commission and
the return thereto and the evidence taken
under it shall (subject to the provisions of rule
8) form part of the record of the suit.
Rule 8. When depositions may be read in
evidence.- Evidence taken under a
commission shall not be read as evidence in
the suit without the consent of the party
against whom the same is offered, unless--
(a) the person who gave the evidence is
beyond the jurisdiction of the court, or dead
or unable from sickness or infirmity to attend
R.S.A.No.733/2004 9
to be personally examined, or exempted from
personal appearance in court, or is a person in
the service of the Government who cannot, in
the opinion of the court, attend without
detriment to the public service, or
(b) the Court in its discretion dispenses with
the proof of any of the circumstances
mentioned in clause (a), and authorises the
evidence of any person being read as
evidence in the suit, notwithstanding proof
that the cause for taking such evidence by
commission has ceased at the time of reading
the same.
Commissions for local investigations
9.......
10 (1)..........
Rule 10(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 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
R.S.A.No.733/2004 10
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.
Rule 10(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.
Commissions for scientific investigation,
performance of ministerial act and sale of
movable property
10A(1) .............
10A(2) The provisions of rule 10 of this Order
shall, as far as may be, apply in relation to
Commissioner appointed under this rule as
they apply in relation to a Commissioner
appointed under rule 9.
10B(1) .............
10B(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
R.S.A.No.733/2004 11
relation to a Commissioner appointed under
rule 9.
10C(1) ...........
10C(2) The provisions of rule 10 of this Order
shall apply in relation to a Commissioner
appointed under this rule as they apply in
relation to a Commissioner appointed under
rule 9.
10C(3)......
Commissions to examine accounts
11.........
12..........
Rule 12(2)Proceedings and report to be
evidence--Court may direct further
inquiry--The proceedings and report (if any)
of the Commissioner shall be evidence in the
suit, but where the court has reason to be
dissatisfied with them, it may direct such
further enquiry as it shall think it.
Commissions to make partitions
13..........
14(1).........
Rule 14 (2)The Commissioner shall then
prepare and sign a report or the
R.S.A.No.733/2004 12
Commissioners (where the commission was
issued to more than one person and they
cannot agree) shall prepare and sign separate
reports appointing the share of each party
and distinguishing each share (if so directed
by the said order) by metes and bounds. Such
report or reports shall be annexed to the
commission and transmitted to the Court; and
the Court, after hearing any objections which
the parties may make to the report or reports,
shall confirm, vary or set aside the same.
Rule 14(3) Where the court confirms or varies
the report or reports it shall pass a decree in
accordance with the same as confirmed or
varied; but where the court sets aside the
report or reports it shall either issue a new
commission or make such other order as it
shall think fit.
(emphasis supplied )
10. Rule 4A was not in the Act till it was inserted
by CPC (Amendment) Act 46 of 1999 with effect from
1.7.2002 enabling and empowering the court to issue a
commission in the interest of justice, for expeditious
R.S.A.No.733/2004 13
disposal or on any other reason.
11.Incidentally, another question came up for
consideration as to the applicability of Rule 8 of Order
XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999
with effect from 1.7.2002. Rule 8 empowers the court to
issue a commission for examination of person only on
satisfying the reason embodied under Clause (a) of Rule
8. By the insertion of Rule 4A, wide discretionary power
is invested with the court in the matter of issuance of
commission for examination of any person on the ground
of "interest of justice or for expeditious disposal or any
other reason", by which the restrictions imposed under
Rule 8 of Order XXVI CPC are taken away, virtually
making Rule 8 redundant. We have also taken note of
Rule 7 of Order XXVI wherein the evidence taken shall
"subject to the provision of Rule 8" form part of the
record of the suit. The expression subject to the
provision of Rule 8 " was inserted by the Act of 104 of
1976 with effect from 1.2.1977 prior to the incorporation
R.S.A.No.733/2004 14
of Rule 4A by the Act 46 of 1999 with effect from
1.7.2002. Since Rule 8 became redundant it has no
application in the matter of Rule 7 of Order XXVI.
12. The expression "shall be read in
evidence" incorporated in Rule 4A, the expression "shall
not be read as evidence" incorporated in Rule 8, the
expression "shall be in evidence in the suit and shall form
part of the record" engrafted in sub rule 2 of Rule 10,
the expression "shall be in evidence in the suit" as
incorporated in sub rule 2 of Rule 12 and the expression
"shall confirm or vary or set aside" as incorporated in sub
rule 2 of Rule 14 would clearly show that the requirement
for admitting the report of the Commissioner either on
record or in evidence under Rules 4A, 8, 10(2) and (3),
12 (2) and 14(2) are different. In Rule 14 (2) nothing
mentioned whether it will form part of record or
evidence. But says that the court can confirm or vary or
set aside the report on hearing the objections of the
party concerned. Different yardsticks were applied in the
R.S.A.No.733/2004 15
matter of commissioner's report as to whether it would
form part of evidence or part of record based on the
purpose in which the commission could be issued viz.,
six categories made mentioned above.
13. Further the power of court in dealing with
the commissioner's report are also differently dealt in
Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).
Rule 8 became redundant by virtue of amendment and
incorporation of Rule 4A to Order XXVI. What is
mandated in Rule 4A is that the evidence so recorded by
the commissioner "shall be read in evidence". So the
court is bound to read in evidence what is recorded by
commissioner on examination of witnesses. There is no
provision for setting aside the deposition recorded by the
commissioner or the report submitted by him. It doesn't
say anything about whether it would form part of the
record or evidence in the suit. Sub rule (3) of Rule 14
says that where the Court confirms or varies the report
it shall pass a decree in accordance with the same, but
R.S.A.No.733/2004 16
where the Court sets aside the report or reports, it shall
either issue a new commission or make such other order
as it shall think fit. Going by Sub rule (3) of Rule 14, it is
clear that a commission which was issued for making
partition either be confirmed or be varied or be set aside
as the case may be by the Court and when it is
confirmed or varied the Court is bound to pass a decree
in accordance with the same but when it is set aside a
second commission can be issued for which setting
aside of the earlier report is a condition precedent. In
short, setting aside of an earlier report of the
Commissioner for issuing a second commission mandated
only under sub rule 3 of Rule 14 of Order XXVI CPC.
14. There is no provision anywhere under Rule 1
to 8 enabling the Court to examine the Commissioner
who prepared the report and recorded the deposition of a
witness/witnesses as the case may be, presumably on
the reason that there is no scope for setting aside the
deposition recorded or the report thereof. If the
R.S.A.No.733/2004 17
examination of witnesses is incomplete or a re-
examination of the witnesses by recalling him is
necessitated after the submission of the first report no
doubt a second commission can be issued for that
purpose. The question of setting aside earlier report of
the commissioner does not arise under Order XXVI Rule 1
to 8, more specifically the commissions which were
issued for examination of persons (witnesses) and the
report and deposition recorded by him.
15. There is some slight difference in the
approach made by the legislature in Rule 10(2) and (3)
wherein it is mandated that the report of the
commissioner and the evidence taken by him "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 as to the manner in which he has
made the investigation. Rule 10(3) deals with the power
R.S.A.No.733/2004 18
of the Court to direct further enquiry when there is any
reason to dissatisfy with the proceedings of the
Commissioner. Setting aside of a report or cancelling a
report of Commissioner is conspicuously absent in sub
rule (2) and (3) of Rule 10, but it empowers the Court to
direct "such further enquiry" which stands for a second
enquiry or a subsequent enquiry necessarily through a
second commission.
16. The provisions of Rule 10 is made
applicable in relation to a commission appointed under
Rule 10A, 10B and 10C which are dealing with the
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property by virtue of sub rule 2 attached to 10A, 10B
and 10C. So the very same legal position is applicable in
the matter of commission issued for scientific
investigation, performance of ministerial act and sale of
movable property under Rule 10A, 10B and 10C and a
second commission is possible without setting aside the
R.S.A.No.733/2004 19
earlier one.
17. The very same provision incorporated in
Rule 12(2) of Order XXVI, provides the power to direct
"such further enquiry" when there is reason to dissatisfy
with the report of the commissioner. A second
commission is possible without setting aside the earlier
one in the matter of examination of accounts through
commission.
18. The very similar provision is incorporated
in Rule 12(2) also. The authority to set aside
commission's report or to vary the commission's report is
engrafted only in sub rule (2) of Rule 14 which stands for
commission to make partition. On applying a plain
reading and strict interpretation to Rule 1 to 14 to Order
XXVI, the resultant effect is that a report submitted by
the Commissioner can be varied or set aside by the Court
only under Rule 14 sub rule (2) of Order XXVI, which
stands for commission to make partition and it is a
condition precedent for issuing a second commission.
R.S.A.No.733/2004 20
19. The general provisions i.e. Rule 15 to 18
(B) of Order XXVI do not say anything about the
examination of Commissioner, or issuance of a second
commission or the requirement of setting aside of first
report.
20. Divergent views were expressed by various
High Courts regarding the question whether the earlier
report of the Commissioner should be wiped off before
issuing a second commission.
21. The Madras High Court condemned the
practice of appointing successive Commissioners in
Thottama v. C.S. Subramaniyyan (AIR 1922 Madras
219). That decision was rendered in Rule 14 of Order
XXVI CPC. But going by the decision, it is clear that the
commission was issued not for effecting partition but for
making local investigation and to assess the value of
improvements effected in the mortgaged property. In
that case three successive Commissions were issued for
the very same purpose viz; for assessing the value of
R.S.A.No.733/2004 21
improvements effected in the mortgaged property. The
said practice of issuing commission one after another was
condemned and deprecated. In that decision it appears
that the mandate under Rule 14 of Order XXVI CPC was
wrongly applied.
22. A Division Bench of Madras High Court in
Ambi and another v. Kunhikavamma and others
[(AIR 1929 Madras 661] considered both the
application of Rule 10(3) and Rule 14(3) and discussed
in detail, the scope of "further enquiry" in the following
lines.
The rule is R. 10(3) and lays down that
further enquiry may be ordered when the Court is
for any reason dissatisfied with the proceedings of
the Commission. It may be noted that there is no
provision corresponding to that in R.14 (3) under
which the Court may issue a new commission.
What is contemplated under R.10(3) obviously is a
further enquiry by the Commissioner already
appointed by the Court itself. It may be that where
the Court is so dissatisfied with the whole
proceedings of the commissioner that it thinks it
better to discard the whole record and start afresh,
R.S.A.No.733/2004 22
such a procedure would not be contrary to the
code. That is the line of argument adopted in
Thottamma v.
Subramaniayyan.................................................
........................................................................
...........
Only the decision of the Court that the work had
been so badly done that it had to be done over
again would avail to validate the issue of a second
commission........................................................
........................................................................
............
Only if he is of opinion after hearing both sides
that the report is wholly useless is it open to him to
discard it and issue a fresh commission to cover the
same ground, and in that case the report of the
first commission is as if it had never been and
would not be evidence in the
case.................................................
He even issued an order to appoint a third
commission, whose report no doubt would have
been dealt with in the same way, and so on ad
infinitum. This procedure, besides being in our view
R.S.A.No.733/2004 23
contrary to law, creates considerable
embarrassment to us here.
23. The said decision, though doesn't say
anything with respect to the requirement to set aside the
earlier one before issuing the second one, the practice of
issuing commission one after another is deprecated.
24. Yet another Division Bench of same High
Court in Kunhi Kutti Ali and another v. Mohammad
Haji and others [AIR 1931 Madras 73] took the view
that the earlier commission should be wiped out before
issuing a second commission. The relevant portion is
extracted for reference.
"We have in the first place to remark that the
lower Court should not have issued two separate
commissions to deal with one and the same
subject and to treat the reports of both the
commissioners as evidence in the case. The
exact circumstances in which he came to issue
the second commission do not appear from the
record that has been placed before us. But the
second commission should not have been issued,
unless it was thought that the report of the first
commissioner was not satisfactory in which case
R.S.A.No.733/2004 24
the earlier commission should have been wiped
out altogether and attention should have been
paid only to what was reported by the second
commissioner. Instead of this, the learned
Subordinate Judge has balanced the report of
one commissioner against that of the other and
has expressed a performance for the views of the
first commissioner. In taking this course, he has
acted with great impropriety and contrary to
what is contemplated by O.26.R.10(3)Civil PC."
25. A Division Bench of Patna High Court in
Shib Charan Sahu and others v. Sarda Prasad and
another (AIR 1937, Patna 670) took a different view
holding that the first commissioner's report cannot be
wiped off the record. It is held that when a Court issues
a commission but is dissatisfied with the report of the
Commissioner, another commission can be issued but the
earlier one cannot be wiped of the record. The relevant
portion of the judgment is extracted below for reference.
Commission- Court dissatisfied with report of
commissioner, can issue another commission-
Report of first commissioner however cannot be
R.S.A.No.733/2004 25
wiped out of record.........................................
When a Court issues a commission. But is
dissatisfied with the report of the commissioner
it is entitled to issue another commission and
also for its report, but the report of the first
commissioner cannot be wiped off the record.
In those judgments, the Madras High Court was
endeavouring to correct a very bad tendency on
the part of the Munsifs of the Malabar districts
who appeared to have got into the habit of
sending out simultaneous commissions to
investigate the same issue of fact and then
taking all the commissioner's reports into
consideration and deciding as between these
various reports which of them was preferable;
and this habit of sending out commissions
whether simultaneous or consecutive had
become a nuisance which the Madras High Court
very properly desired to check and put an end
to. I can find in those judgments no statement
of a principle such as is contended for in this
appeal. There is nothing in O.26, R.10, Civil P.C
to justify such a contention. It is in the power of
the Trial Court to send out a second or even a
R.S.A.No.733/2004 26
third commission, and when all the materials
are before the Court it may at the time of
delivering judgment attach very little or no
weight to the first commissioner's report but this
is very far from saying that this amounts to
requiring the first report to be wiped out of the
record and not considered as evidence.
26. A single bench of the same High Court
followed the principle laid down in Shib Charan
Sahu's case (supra) in the following lines.
Order XXVI provides that the Commissioner
appointed under Rule 9 has to return the
evidence recorded by him together with his
report in writing signed by him to the Court.
Sub rule (2) of R.10 of O.XXVI interalia makes
it clear that the report of the Commissioner
and the evidence taken by him shall be
evidence in the suit and shall form part of the
record. Sub rule (3) authorises the Court to
direct such further enquiry to be made as it
thinks fit in case the Court is, for any reason
dissatisfied with the proceedings of the
Commissioner. No provision of the Code,
however, provides for the Commissioner's
report being taken off the record or not being
R.S.A.No.733/2004 27
considered as evidence in any circumstances.
The value to be attached to the report is
however, a different matter. It is obvious that
the Court was either not satisfied with the
proceedings of the first Commission or merely
because of the statements made by the
parties on January 16, 1970 the second
commission was ultimately issued.
27. It was held by a Single Bench of this High
Court in Narayan Guptan v. Madhava Menon (1964
KLT 453) that the issuance of a second Commission
without setting aside the earlier one is only an error, or
defect or irregularity in the proceedings which does not
per se affect the merits of the case.
28. In Moidu v. Lekshmi Amma [(1968)
KLT 699] V.R.Krishna Iyer. J. took the view that a
second commission can be issued only after formally
setting aside the earlier one. The relevant portion of the
said decision is extracted below for reference.
If a second commission is to be issued under
such circumstances, the first report must be
R.S.A.No.733/2004 28
formaly set aside. A conscious irregularity need
not be committed at a stage where the decree
has not been passed, when it can be set
right..............................................................
.......
He rightly relies upon Order xxvi R. 18, Civil
Procedure Code, and the ruling reported in
Achuthan v. Kunhipathumma (1967 KLT. 326)
wherein a Division Bench of this Court has held
that it is a principle of natural justice that it is
only evidence taken in the presence of a party
that can be used against him. For this reason,
according to their Lordships, Order XXVI R. 18
CPC. provides for an opportunity being given to
the parties to be present before the
commissioner in the property at the time of his
inspection. Order XXVI R. 18, CPC. enshrining as
it does a wholesome principle of natural justice,
is treated as imperative. Under Order XXVI R. 18
cpc a direction has to be issued by the Court to
the parties before the issue of a commission and
this direction should be issued after notice to the
parties; at least the commissioner should issue
notice to the parties calling upon them to appear
in the property on the date he proposes to visit
the property for investigation. Unfortunately,
R.S.A.No.733/2004 29
obsessed by a sense of emergency, the
commissioner has admittedly departed from his
obligation under Order XXVI R. 18 CPC. The
consequence is that the Court is constrained to
direct the second commissioner to make
"necessary rectification and additions in the light
of the objections raised by the
defendants.....................................................
.....
Nevertheless, his report has been prepared
ex-parte and that is the vice of it. If a second
commission is to be issued under such
circumstances, the first report must be formally
set aside. Of course, the ruling reported in
Narayana Guptan v. Madhava Menon (1964 KLT.
453).
In Hydrose v. Govindankutty [(1981 KLT
360], the expression "dissatisfied with the
proceedings of the Commissioner" as engrafted
in Rule 10 (3) Order XXVI discussed in detail in
reference to Rule 12 (2) of Order XXVI and it
was held that "sub rule (3) does not specifically
provide for wiping out evidence which is
already part of the record. It only contemplates
a further enquiry and therefore, a further report
R.S.A.No.733/2004 30
which will also become evidence and part of the
record by virtue of sub rule (2). If the Court is
dissatisfied with the proceedings of the first
commissioner, it may not attach much
probative value to his report in deciding the
issue before it. Rule 10(3) does not provide for
setting aside a report and issuing a new or
second commission. It is not the repository of
the court's power to issue a second
commission."
29. The very same view was reiterated by
another single Bench of this Court in Ummer v.
Muhammed [(1983) KLT 258] in the following lines.
The Court can issue a second commission only
under Order 26 Rule 10(3) of the Code. As per the
above provision, the Court should, for any reason,
he dissatisfied with the proceedings of the
commissioner already deputed. The dissatisfaction
can be before the submission of the report or after
that. No question of setting aside the report arises
if the Court was dissatisfied about the work of the
commissioner and issued a second commission
before he submitted the report. Proceedings of the
Commissioner cannot but include the report of the
R.S.A.No.733/2004 31
commissioner, if a report has been submitted. If
the Court is dissatisfied about what the
commissioner did, can the report be salvaged
simply because the report is not specifically made
mention of in rule 10(3). Not only that the Court
gets jurisdiction to issue a second commission only
if the Court for any reason is dissatisfied with the
work of the first commissioner.
Going by the scheme of the relevant provision of
the Code, this is not something which is
contemplated. Simply because rule 10(3) does not
provide for the setting aside of the first commission
report, it cannot be said that a second commission
can be issued without setting aside the first
commission report. If, for example, the Court feels
some more details are to be gathered, the Court
can depute the same commissioner for the same
purpose and in that case, no setting aside of the
report already submitted is necessary.
Order appointing a second commissioner, without
assigning any reasons why the report of the
previous commissioner is ignored, is not only
contrary to the provisions of O.26 R.10((3) but is to
be condemned.
R.S.A.No.733/2004 32
(emphasis supplied)
In that decision, the Single Bench of this Court took the
view that the court can issue a second commission only
under Order XXVI Rule 10(3) CPC. This observation was
made without considering the application of Rule 14(3) of
Order XXVI CPC.
30. The Culcutta High Court in Chinmaya
Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =
2016 KHC 2319] took another view stating that
"although rule 10 of Order XXVI does not expressly
provide for setting aside of a commissioner's report, the
court can do so in exercise of its inherent power."
31. We are in respectful disagreement with
the view taken by the High Court of Calcutta simply on
the reason that the mandate under Rule 10 says that
the report "shall be in evidence in the suit and shall form
part of record". So in no event it can be set aside but the
probative value of the same can be looked into and
R.S.A.No.733/2004 33
assess at the time of hearing of the suit or proceedings.
If it is found that there is no probative value attached to
the said document, the court need not act upon the
document but there is no provision for setting aside the
same under Rule 10 of Order XXVI as the mandate
included therein says otherwise. It is also well settled
that when there is provision to meet a particular situation
in the CPC the court is not expected to exercise
jurisdiction under Section 151 CPC. A strict interpretation
of rule 10 of Order XXVI, would show that there is no
scope or occasion for setting aside the report of the
commissioner which is "shall be in evidence in the suit
and shall form part of the record."
32. In Swami Premananda Bharathi v.
Swami Yogananda Bharathi [(1985 (1) KLT 144)] a
Division Bench of this Court held as follows:
"That the first commissioner's report and
proceedings should be set aside for reasons to be
recorded and then only the court can proceed to
appoint another commissioner to do the work is a
R.S.A.No.733/2004 34
wholesome rule of law based on public policy. The
proceedings in the court below could be expedited
without waste of time and money. We are of the
view, that 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 inquiry.
This is a condition precedent. The provision
contained in Order XXVI Rule 12 C.P.C is "vital".
Strict adherence alone will facilitate speedier,
effective and cheaper administration of justice.
Therefore, the appointment of the second
commissioner and the reports filed by him without
setting aside the first commissioner's report is
wholly illegal and without jurisdiction".
33. The said decision was rendered after
referring the above said decisions but did not go into the
question of different treatment given to Rule 1 to 14 of
Order XXVI in accordance with the purpose to be
achieved, but had taken note of minor difference in the
phraseology in Order XXVI Rule 10 (3) CPC and Order
XXVI Rule 12 CPC. As discussed in earlier paragraph
Rule 12 deals with examination of accounts or
R.S.A.No.733/2004 35
adjustment of accounts through commission. But Rules
10(2) and (3) stand for commission for local
investigation. The power of Court to examine the
Commissioner personally in open court is engrafted in
Rule 10(2) but there is no such power included any
where in Rule 11 or 12. But for saying that the report of
the Commissioner shall be evidence in the suit. The
expression "shall form part of the record" as engrafted in
Rule 10 (2) is conspicuously absent in Rule 12 (2). In
fact Rule 10 and Rule 12 designed and intended for
meeting different situations are having different
applications and impact, though the principles laid down
therein are one and the same.
34. Neither in Rule 10 nor in Rule 12 the power
to set aside the commission report or to wipe out of
record, is included. The report submitted under Rule 12,
though shall be in evidence in the suit, it will not form
part of the record as in the case of Rule 10 wherein it is
specifically stated that the report of the Commissioner
R.S.A.No.733/2004 36
and the evidence taken by him shall form part of the
record. As discussed in earlier paragraphs both Rule 10
and 12 emphasis the need to issue and to direct a
further enquiry when the Court has reason to dissatisfy
with the proceedings of the Commissioner. Necessarily a
further enquiry stands for issuance of a second
Commission. Nowhere it is stated in Rule 10 or 12 the
requirement of setting aside earlier one or to discard the
earlier one. Setting aside of a commission report or
varying a commission report, stands provided only in
Rule 14(2) which stands for issuance of commission to
make partition. The Division Bench did not consider the
purpose for which Rule 10 and 12 was enacted and also
the conspicuous absence of expression "shall form part
of record" in Rule 12 (2) and also absence of provision
either in Rule 10 or in Rule 12 for setting aside or
varying the commission report. What is applied by the
Division Bench in that decision is the public policy to have
a speedier, effective and cheaper administration of
R.S.A.No.733/2004 37
justice and not on the basis of the scheme of Order XXVI
CPC and the rules thereunder. In fact what is held in
that decision is that the Court can appoint a second
commission for further enquiry only if the Court has
reason to dissatisfy with the proceedings and report of
the first commissioner for the reasons stated.
35. It is well settled that a judgment has to be
read in whole to appreciate what actually is rendered, the
ratio/rationale and the principle applied, in order to
understand what is actually given by the judgment/
adjudication thereof. There may be so many
observations/discussions leading to an inference or in
arriving at a conclusion in a judgment. It is not advisable
to pick and choose one or two words or sentences and to
interpret the same apart from what is actually dealt
under the judgment.
36. While interpreting a judgment on the
rationale/ratio applied therein, the observations,
reasons/discussions made therein in arriving at a
R.S.A.No.733/2004 38
conclusion shall be understood not in isolation apart from
the conclusion arrived at. The observations must be read
in the context in which they appear to have been stated
and observation made in the judgment should not be
read in isolation apart from the conclusion arrived
therein. Further the observation shall not be substituted
in place of conclusion arrived at, there cannot be any
uniform application of rules governing interpretation of
statutes and interpretation of judgment/orders. They are
governed by different fields of interpretation.
37. In Union of India and another v. Major
Bahadur Singh [(2006) 1 SCC 368] the Apex Court
settled the following in the matter of interpretation of
judgments.
"Observations of the courts are neither to be
read as Euclid's theorems nor as provisions of the
statute and that too taken out of their context.
These observations must be read in the context in
which they appear to have been stated.
Judgments of the courts are not to be construed as
statutes. To interpret words, phrases and
R.S.A.No.733/2004 39
provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but
the discussions is meant to explain and not to
define."
38. Then again in Nair Service Society v.
State of Kerala [(2007) 4 SCC 1], it was held by the
Apex Court that for construing a judgment, it must be
read in its entirety.
39. In Bombay Dyeing & Mfg. Co. Ltd. v.
Bombay Environmental Action Group and others
[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the
position stands further reiterated as follows:
"Judgment are required to be read in their entirety.
A judgment cannot be read as a statute.
Construction of a judgment should be made in the
light of the factual matrix involved therein. What is
more important is to see the issues involved therein
and the context wherein observations were made.
Any observations made in a judgment should not be
read in isolation and out of context."
40. While applying the above said principle in
interpreting the judgment in Swami Premananda
R.S.A.No.733/2004 40
Bharathi's case the observation made by the Division
Bench by importing application of public policy in order to
have a speedy disposal, effective time management and
cheaper administration of justice has to be understood in
that context. The conclusion arrived at by the Division
Bench is that "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
commission for further inquiry and that is a condition
precedent. The condition precedent is the dissatisfaction
of the proceedings and report of the first commission.
So, in fact, the position rendered in that decision does
not have any inconsistency with the earlier view taken in
Hydrose v. Govindankutty [1981 KLT 360] and
Ummer v. Muhammed [1983 KLT 258].
41. The question of setting aside of earlier
commission report before issuing a second commission
would arise only in case of commission issued for
effecting partition. In all other cases there is no
R.S.A.No.733/2004 41
necessity, requirement or need to set side the earlier
report, before issuing a second Commission either for the
very same purpose or for some other purposes. No such
mandate is included any where in Rule 1 to 13 to Order
XXVI. At the same time, we cannot shut our eyes into
certain realities which are prevailed in certain part of
Kerala in issuing commissions one after another. There
are cases of issuing three or four commissions for the
very same purpose. Such practice definitely is
detrimental to the speedy disposal of the suit and
cheaper administration of justice. Both are detrimental
to the system and hence has to be deprecated. But at
the same time, it does not mean that the court is not
empowered to issue one or two or three commissions if
the situation warrants so.
42. The restriction of issuing commission one after
another has to be understood under the public policy
having speedy disposal, time management, cheaper
administration of justice and the like. So the legal
R.S.A.No.733/2004 42
position can be summarised in the following lines:
(i) There is no provision for setting aside the deposition
recorded by the Commissioner or the report submitted
thereof under Rule 1 to 8 of Order XXIV CPC which are
dealing with issuance of commission for examination of
witnesses.
(ii) There is no provision anywhere in Rule 1 to 8 of
Order XXIV, prohibiting issuance of a second commission
when it is found to be necessary, especially when the
report is incomplete or the witness examined was
recalled, or a new witness list is submitted and allowed.
(iii) There is no provision for setting aside the report
submitted by the commissions issued for making local
investigation under Rule 9 to 10(3) of Order XXVI CPC.
On the other hand, Rule 10(2) enables the court to have
a second commission to conduct further enquiry. The
question of setting aside the earlier one does not arise
and it is not at all necessary to set aside the earlier one
under Rule 9 to 10(3) of Order XXVI CPC.
R.S.A.No.733/2004 43
(iv) The legal position is very same in the matter of
issuance of commission for scientific investigation,
performance of ministerial act and sale of movable
property wherein the provisions of Rule 10 of Order XXVI
CPC made applicable as if they apply in relation to a
commission appointed under Rule 9 of Order XXVI CPC.
(v) The very same legal position is also made applicable
in the matter of commission to examine accounts
governed by Rule 11 to 12(2) of Order XXVI CPC
wherein also the scope of a "further enquiry" provided.
(vi) The question of setting aside or varying or
confirming the report of a commission would arise only in
the case of a commission appointed for the purpose of
effecting partition under Rule 13 to 14(3) of Order XXVI
CPC. It mandates that when the commission report is
confirmed or varied, the court is bound to pass a decree
in accordance with the same and when it is set aside, to
issue another commission for that purpose. So setting
aside of earlier commission report is a condition
R.S.A.No.733/2004 44
precedent in the matter of commission appointed for the
purpose of making partition.
(vii) The issuance of successive commission either
under Rules 1 to 8, or under Rules 10 to 13 of Order
XXVI, without having dissatisfaction either the report or
proceeding of the commissioner earlier appointed, is
deprecated.
(viii). The dissatisfaction if any entertained by the court
in the proceedings of commissioner or the report thereof
under rules 10 to 13 of Order XXVI CPC, is only an initial
assessment in nature, shall not be read as substitute for
set aside the report or wiping off the same from the
record or evidence.
(ix) Going by the phraseology used in various rules viz.,
1 to 13 of Order XXVI even a second commission is
permissible though it may result in conflicting report.
There is no scope for exercising the jurisdiction under
Section 151 CPC in respect to the matters covered by
rule 1 to 15 of Order XXVI CPC.
(xi) Rule 8 of Order XXVI CPC became redundant by the
incorporation of Rule 4A in Order XXVI CPC.
43. On coming into the impugned judgment,
the first appellate court proceeded in the matter under a
mistaken impression that the second commission can be
issued only after setting aside the first one, relying on
the decision rendered in Swami Premananda Bharathi's
case(supra). Further, the first appellate court committed
a serious error in overlooking the settled position that
when there is mistake or difference in the survey
number, description of boundary will prevail over, the
property. Ext.C1(a) is seen prepared correctly identifying
and locating item (1) property having an extent of 10
cents in Survey No.164/3. The properties lying on
either side belongs to the defendants. The defendants
did not have any case that they had obtained title over
10 cents of property comprised in Survey No. 164/3
under any document of title but simply advanced a case
that the same will form part of their large extent of
property and at the same time they advanced a case
that the description and extent as stated in their
document of title are not correct. So no much reliance
can be given to the case advanced by the defendant that
the 10 cents of property comprised in survey No.164/3
will form part of their large extent. No satisfactory
evidence much less any evidence adduced in that
behalf by the defendant, which was also over looked by
the lower court. On the other hand, the document of title
produced by the plaintiff and the boundary description
entered therein fully and completely tally with Ext.C1 (a)
plan in respect of the 10 cents of property comprised in
survey No.164/3. The only defect in the case advanced
by the plaintiff is that as per their document of title in
Ext.A8, the sub division number was wrongly/ mistakenly
entered for which a correction deed was executed as
Ext.A9. As discussed earlier, even without a correction
deed or correcting the sub division number or the survey
number if it was found that there is a mistake, crept in
the survey number, the court has to look into the
boundary description and the boundaries entered in the
document and to identify and locate the property based
on the boundaries. The said settled principle was
overlooked or rather ignored by the first appellate court.
Added by the fact that the defendant did not have any
consistent case or acceptable version regarding the
acquisition of right title or interest over item No.1
property. On the other hand, on either side of item
No.1, the property belonging to the defendant situated.
No other way is available to the property of plaintiff
scheduled in the suit as item No.2.
44. So the material facts which are relevant for
consideration in the adjudication of dispute involved in
the suit have been not considered either by the trial court
or by the appellate court which has resulted in the
miscarriage of justice which would attract the
interference by this Court and we are doing so, by
setting aside the decree and judgment of both the trial
court and the first appellate court. The matter is
remanded back to the first appellate court to have a fresh
consideration of facts and evidence involved in the case
in accordance with law in force. We are also constrained
to issue direction to the first appellate court to have an
earlier disposal of the appeal within a time schedule of
three months from the date of receipt of copy of this
judgment, as the litigation was started in the year 1988.
No costs. The parties shall appear before the first
appellate court on 5.1.2017.
Sd/-
P.R.Ramachandra Menon
Judge
Sd/-
P.Somarajan
Judge
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