Asifunisa and Another vs Ali Imam

Satyeshwar Roy, J.—The Defendants are the Petitioners. The opposite party, as Plaintiff, filed Title Suit No. 12 of 1987 for a declaration of his right, title and interest over the suit land. Prayer was also made for a decree for confirmation of possession and mandatory injunction restraining the Petitioners from interfering with the peaceful possession of the opposite party.

The Petitioners contested the suit. From the pleadings of the parties it appeared that there was dispute about the plot of which the suit land formed part. The court below appointed a pleader commissioner. The pleader commissioner was directed to demarcate the suit land and to report whether the suit land formed part of R.S. Plot No. 1524 or R.S. Plot No. 1523 or both. Direction was also given to the pleader commissioner to specify the physical feature of the suit land which might be necessary for the court to come to a conclusion as regard the possession of the parties.

The pleader commissioner executed the commission and submitted his report. The opposite party filed objection to the report, inter-alia, stating therein that the report was highly partisan in nature and that he had acted beyond the writ. Prayer was made for setting aside the report of the pleader commissioner and for appointment of another pleader commissioner. The court below heard the parties. By order dated 9.4.1990 after recording reasons it set aside the report of the pleader commissioner and ordered for appointment of another pleader commissioner. This has been impugned in this civil revision application.

It was listed, before a learned Single Judge who, however, observed that the matter should be heard by a Division Bench. The Division Bench was of the opinion that as on same points the judgment in this case may not be in conformity with the judgment of the Division Bench in Shib Charan Sahu and Others Vs. Sarda Prasad and Another, this case be heard by a larger Bench. This is how the matter came before a Full Bench.

The only point for determination in this case was; before directing further inquiry whether the court has jurisdiction to set aside the report of the pleader commissioner.

The power of Court to issue commissions is provided in Section 75 of the CPC (the Code), which may be exercised subject to such conditions and limitations as may be prescribed. It may be noticed that originally the power of Court to issue commission was:

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts;

(d) to make a partition.

By the Amendment Act of 1976, Court has been given power to issue Commission;

(e) to hold a scientific, technical or expert, investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; or

(g) to perform any ministerial act.

It will be noticed that power of the Court to issue commission is subject to such conditions and limitations as may be prescribed. The conditions and limitations are prescribed in Order XXVI of the Code. The main heading of Order XXVI is "Commissions" and these are divided in number of sub-headings. Rules 1 to 8 are under the heading commissions to examine witnesses Rules 9 and 10 are under the heading commissions for local investigations Rule 10A is under the heading Commission for scientific investigation Rule 10B is under the heading Commission for performance of a ministerial act Rule 10C is under the heading Commission for the sale of movable property: Rules 11 and 12 are under the heading Commissions to examine accounts: Rules 13 and 14 are under the heading Commissions to make partitions. Other rules are also there in that Order under the heading ''General Provisions''. I am not noticing the same as those are not necessary to be noticed in this case.

It will be seen that for alt seven clause mentioned in Section 75, provision has been made in Order XXVI. As we are concerned in this case with issuance of commission to make local investigation as provided u/s 75(b), I am noticing the rules under the heading ''Commission for local investigation''. Rules 9 and 10 of Order XXVI are under the beading'' Commissions for local investigations:

Commissions to make local investigation.

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

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

Procedure of Commissioner.

10 (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court.

Report and deposition to be evidence it suit (2) 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.

Commission may be examined in person (3) where 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.

Rule 9 empowers the Court to issue Commissions for local investigations for the purposes of (i) elucidating any matter in dispute or (ii) ascertainment of the market value of any property or (iii) the amount of any mesne profit or damages or annual net profits. Rule 10 provides for the Commissioner to return to Court after local inspection the evidence 99 reduced in writing together with report. The evidence taken by him but not the evidence without the report shall be evidence by him but not the evidence without the report shall ha evidence in the suit and shall form part of the record. It also provides for examination of Commissioner in Court and empowers the Court to order for further inquiry.

During the course of hearing, question arose whether Rule 10 shall apply in relation to a Commissioner appointed under Rule 9. Rule 10 shall apply in relation to a Commissioner appointed under Rule 9 is clear from the reading of Rule 10A(2), Rule 10B(2) and Rule 10C(2) wherein, inter-alia, it has been stated that the provisions of Rule 10 shall apply in relation to a Commissioner appointed under those rules as they may apply in relation to a Commissioner appointed under Rule 9.

The question that arises for the purpose of this case whether the whole of Rule 10 will apply to all cases whenever a Commission is issued under Rule 9.

It will be noticed that Rule 9 does not speak about evidence. In Rule 10(1) and (2) evidence has been mentioned. It thus appears that for the purpose of executing writ that may be issued under Rule 9, there may be necessary for the Commissioner to record evidence; for instance ascertaining the market value of any property or the amount of any mesne profits; in some cases there may not be any necessity for recording any evidence for instance when the Commission is issued to ascertain whether the suit land is within a particular plot number or not. For the purpose of recording evidence only, provisions have been made in Order XXVI, Rules 1 to 8. There may be cases covered by Rule 9 where it is only a report which the Commissioner may be required to submit after executing the commission and in some cases it may be the report together with the evidence reduced into writing.

Rule 10(2) provides that 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. If in a given case, the Commissioner may not be required to reduce into writing the evidence while executing the commission, there is no question that evidence along with the report shall be evidence in the suit. In a case where report only is required to be submitted and that report surely by itself cannot be evidence, it being an opinion, what Court will do if the correctness of the report is challenged?

There is no provision either in Rule 9 or 10 of Order XXVI empowering the Court to set aside the report and the evidence, if any, taken by him. There is no such provision even in a case where Court may be dissatisfied with the proceedings of the Commissioner and directs for further inquiry. Where preliminary decree for partition has been passed, the Court may issue commission for separating property according to the rights as declared in such decree by issuing commission under Order XXVI Rule 13. Rule 14(2) provides that 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), inter-alia, provides that where the Court set aside the report or reports, it may issue a new commission. None of these provisions appear in Rule 10.

Second part of Rule 10(2) provides for examination of Commissioner in Court by any party. Examination of Commissioner will be only in a case where objection to the report is filed by any party. The examination is to be confined to the report only. Court may after examination of Commissioner be satisfied by the report or may be dissatisfied with it. If it is dissatisfied with the report, Court may direct for further inquiry.

It was submitted on behalf of the opposite party that there may not be specific, provision under Order XXVI Rule 10 to wipe out the report but the same can be done in exercise of power u/s 151 of the Code, There are two difficulties in accepting this contention. Firstly, as already noticed, where Parliament was of opinion that power should be given to Court to set aside a report, the same has been specifically provided in Order XXVI, Rule 14. If under inherent power it could be set aside, it was not necessary to specifically provide for it. Secondly as held by the Supreme Court in Padam Sen and Another Vs. The State of Uttar Pradesh, if a specific provision has been made in the Code, the Court cannot take recourse to Section 151 for passing any order which would be contrary to that provision. A fortiori recourse cannot be had to Section 16 of the General Clauses Act, 1897.

Court, if dissatisfied with the report, shall record its reasons for the same and order for further inquiry. I do not find any reason why for further inquiry the report shall have to be set aside.

In Shib Charan Sahu (supra) the trial court appointed Commissioner to ascertain the boundary of the two adjacent pieces of land claimed by the parties. The Commissioner submitted his report holding that the Defendant had encroached Plaintiff''s land. The trial court being dissatisfied with the report issued a second commission. The second report was contrary to the first report. The trial court believed the second report and dismissed the suit of the Plaintiff. The appellate court took into consideration both the reports and other materials and held that the Defendants had encroached the Plaintiff''s land. The Defendant field second appeal in the High Court. Submission was made before the High Court that in Hg circumstances a third commission should have been issued. This Court rejected the Game. The Defendants filed letters patent appeal. They relied in Kunhi Kutti Ali and Another Vs. Muhammad Haji (died) and Others, and Pazhancheri Panangat v. Achuta Menon AIR 1932 Mad 482 and submitted that when the trial court is dissatisfied with the report of a Header commissioner and sees fit to direct the second commissioner, he should wipe out the first report and treat it as not being evidenced. The Division Bench of this Court was of the opinion that the observations of the Madras High Court were made to correct the habit of sending out repeated commissions in Malabar district. It observed that no statement of a principle as was contended in Shib Charan sahu (supra) was decided. It further observed that there was nothing in Order XXVI, Rule 10 of the Code to justify the said contention that is wiping out the first report if the Court after being dissatisfied with the report issues orders directing for further inquiry''

I am in respectful agreement with the I law laid down in Shib Charan Sahu.

It is necessary to notice the cases cited at the Bar, besides Shib Charan Sahu (supra). In Chhotu Mauju Vs. Gurbhajan Singh, Hydru and Another Vs. Govindankutty Nair, ; Dr. P. Subramoniam Vs. K.S.E. Board and Others, Shib Charan was followed. In Sivaraman Vs. V.C. Narayanan, that question was not directly involed. In Swami Premananda Bharathi Vs. Swami Yogananda Bharathi and Another, Commission had been issued under Rule 11 and Rule 12(2) provides that the proceeding and report (if any) of the Commissioner shall be evidence, but where the Court has reason to be dissatisfied with them, it may direct further ''inquiry. It was he''d further inquiry may be ordered only after setting aside the first report. The language of Rule 10(3) and 12(2) which provide for further inquiry are completely different. Further, if report becomes evidence by force of Rule 12(2) how such evidence can be wiped out? It is one thing not to rely on an evidence and another to wipe it out. I am not inclined to follow Swami Premananda (supra). In Roy and Co. and Another Vs. Sm. Nani Bala Dey and Others, point in issue was not as involved in the present case. In Gopal Behera and Others Vs. Lokanath Sahu and Others, it has been said if there is serious discrepancies in the report and evidence of Commissioner when examined in Court, the report should be rejected.

Coming to the present case, I hold that the court below had no jurisdiction to set aside the report when it was dissatisfied with it. Alter recording reasons, the court below was entitled to order for further inquiry by another Commissioner.

The Civil Revision is allowed in part and that part of the order by which the report has been set aside is set aside.

S.B. Sinha, J.

I regret my inability to agree with the judgment prepared by S. Roy, J. for whom I have great respect.

In view of the fact that the facts of the case have been stated in brief in the judgment prepared by my learned brother S. Roy, J. it is not necessary to restate the same.

Suffice it to say that in the suit, an issue arose for consideration as to whether the suit land lies in plot No. 1524 or 1523.

In the premises aforementioned, the learned court below appointed Sri B.N. Gupta as a Survy knowing Pleader Commissioner directing him to:

demarcate the suit land and to report specifically whether the suit land forms part of plot No. 1524 or plot No. 1523 or both as also to specify the physical features of the land : which may be necessary for the court to come to a conclusion as regards possession of the parties.

Pleader Commissioner submitted his report on 30.11.1987.

The Plaintiff, thereafter filed an objection to the said report on 15.12.1987 alleging inter alia, therein "the reports submitted by the Pleader Commissioner is a document of a highly partisan nature containing mis-statements of serious magnitude calculated to help one of the parties to the suit."

In view of the aforementioned objection filed on behalf of the Plaintiff-opposite party the pleader Commissioner was examined in court.

The learned court below, by reason of the impugned order inter alia, held:

(a) That the Pleader Commissioner has travelled beyond the scope of writ for which he was not authorised to do so ;

(b) In view of the fact that. Sri B.N. Gupta admitted in his evidence that he did not measure the entire plot No. 1523, his report about the amalgamation of plot Nos. 1523 and 1524 can not be believed ;

(c) The Pleader Commissioner admitted that he did not take fix point from north side for ascertaining the point ''N'' & ''S'' in map No. 1, he also did not take set off while measuring the land.

(d) The report of the Pleader Commissioner is highly partisan containing misstatements of serious magnitude calculated to help one of the parties to the suit.

On the basis of the findings aforementioned, the learned court below set aside then report of the Pleader Commissioner and directed that another Pleader Commissioner be appointed.

Mr. M.Y. Eqbal, the learned Counsel appearing on behalf of the Petitioners submitted that from a persual of Order 26, Rule 9 and Order 26, Rule 10 of the Code of Civil Procedure, it would appear that the report of the Pleader Commissioner can not be set aside, as the same forms a part of the record and is to be used as an evidence in the suit.

The learned Counsel, in this connection, has placed strong reliance upon a Division Bench decision of this Court in Shib Charan Sahu and Others Vs. Sarda Prasad and Another,

In this connection, Mr. Eqbal has also placed reliance upon Chhotu Mauju Vs. Gurbhajan Singh, Hydru and Another Vs. Govindankutty Nair, and in Dr. P. Subramoniam Vs. K.S.E. Board and Others,

Mr. Eqbal, further submitted that on comparison of the phraseology used in Rule 10(2) and (3) of Order 26 of the CPC with that of Sub-rules 2 and 3 of Rule 14 thereof, it would be evident whereas under the latter rule, a provision has been made inter alia, to set aside, modify or affirm a report, no such power is vested in the court under Sub-rule 3 of Rule 10 of Order 26 of the Code and thus it must be held that the Legislature in its wisdom did not think it fit to empower the court to set aside a report submitted by the Pleader Commissioner.

The learned Counsel further submitted that in view of the fact that in terms of Rule 10(2) of the Order 26 of the Code, the report of the Pleader Commissioner is to form part of records, the question of setting aside the report does not arise which would mean wiping off the same from the records.

Mrs. Jaya Roy, the learned Counsel Bearing on behalf of the opposite party, on Bother hand, submitted that the court has jurisdiction to set aside a report before another pleader Commissioner can be appointed.

It was further submitted that as in terms of Sub-Rule 3 of Rule 10 of Order 26 of if Code, there is no provision for appointing a second Pleader Commissioner while directing further inquiry; it must be held that a (pod Pleader Commissioner can be appointed only by setting aside the report submitted by the first Pleader Commissioner.

The learned Counsel has placed strong reliance upon the decisions in Swami Premananda Bharathi Vs. Swami Yogananda Bharathi and Another, Sivaraman Vs. V.C. Narayanan, and a Kent decision of the Orissa High Court in Gopal Behera and Others Vs. Lokanath Sahu and Others, and in Roy and Co. and Another Vs. Sm. Nani Bala Dey and Others,

Section 75 of the CPC provides for the power of Court to issue Commissions inter alia, to make a local investigation subject to such conditions and limitations as may be prescribed.

Order 26 of the CPC imposes conditions and limitations, subject to which the court may exercise power to issue a commission.

The Section states the general powers of a court in regard to issue of commissions; Order 26 Rules 5 to 18 also contain some general provisions, Commissions to examine witness (Order 26 Rules 1 to 8); for scientific investigation, performance of ministerial act and sale of movable property (Order 26 Rules 13 to 14); detention, preservation, inspection of property (Order 39 Rule 7).

From a perusal of Sub-Rule 1 of Rule 10 of Order 26 aforementioned, it is evident'' that the Commissioner is required to return the evidence after making such local inspection as he deems necessary and after reducing to writing the evidence taken by him and such evidence together with his report in writing signed by him, to the court.

Sub-Rule (2) of Rule 10 specifically provides that the report of the Commissioner and the evidences taken by him (but not the evidence without report) shall be evidence in the record and would form part of the record.

The Legislature, therefore, did not contemplate that the report alone shall form part of the record nor the evidence alone would form part of the record but the report together with the statements taken by the Commissioner would form part of the record.

It is, therefore, evident that although the report of the Commissioner and evidence taken by him reduced to writing together from evidence in the suit and form part of the record but rot one divorced from each other.

In Order 26, Rule 10 after the word evidence, the words if any do not occur. Thus, it is not possible to read the words if any after the word evidence occurring under Sub-rules 1 and 2 of Rule 10 of Order 26 of the Code of Civil Procedure.

However, it is well known that where literal interpretation is possible, the Court shall not add or substract any word t� or from any Statutory provision,

The Supreme Court recently in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, held that recourse to interpretation of a provision of an Act shall be taken recourse to only when the language is not clear, explicit and unambiguous.

In the aforementioned decision, K. Ramaswamy, J stated the law thus:

The golden rule of statutory construction is that the words and phrases or sentence should be construed according to the intent of legislature that passed the Act. All the provisions should be read together. If the words of the statutes are in themselves precise and unambiguous the words or phrases or sentences in their natural and ordinary sense.

The same view has recently been taken by a Full Bench of this Court in Mohd. Jainul Ansari and Others Vs. Mohd. Khalil, wherein, one of us (S. Roy. J.) stated:

One of the cardinal principles of interpretation of Statutes is that where the language of an Act is clear and explicit" we must give effect to it. whatever may be the consequences, for in that the words of the Statute speak the intention of the legislature. (Craise on Statute Law 7th Edition Page 65). Further a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. This principle is commonly known as cases omissus. Omissions in a statute cannot be supplied by judicial construction. It is well settled law that the Legislature does not waste words without any intention and every words without any intention and every word that is used by the Legislature must be given its due import and significance. One of the well known rules of interpretation is that Court in interpreting statute must not legislate.

In that decision, I had also the occasion to consider various decisions in the following terms:

In Heckett Engineering Co. Vs. Their Workmen, held that it is a well settled rule of construction that the language of a provision or a rule should not be construed in a manner which would do violence to the phraseology. In Sutters v. Briggs reported in 1922 App. Cas. 1 Srikenhead L.C. observed as follows:

Where, as here, the legal issues are not open to serious doubt our duty is to express a decision and leave the remedy (if one be resolved upon) to others.

In Halsbury''s Laws of England Fourth Edition Volume 44 at para 840 the learned author states," It is the province of the legislature to enact statutes, and of the courts to construe the statutes which the legislature has enacted."

In Craise on Statute Law 7th Editions at page 65 the learned author precisely states what should be the construction where meanings is plain by the following words:

If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of law giver.

In the Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, it has been held that where the statute''s meaning is clear and explicit, words can not be interpolated. In State of Kerala Vs. Mathai Verghese and Others, it has been held. In interpreting the provisions, the exercise undertaken by the court is to make explicit the intention of the legislature'' which initiated the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to legislate have not been conferred on the court.

A Court can make a purposeful interpretation so as to evaluate the intention of the legislature and not a purposeless one is order to defact in intention of the legislature wholly or in put." Reference in this connection be also made The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly,

Recently the Supreme Court also in Raja Satyendra Narayan Singh and Anr. v. State of Bihar and Ors. reported in 1987 BUR 477 : 1987 PLJR (SC) 47 held, that Rules and Section should be harmoniously construed. It has further been held in the aforementioned decision that basic principle of constructions of every statute are to find out what is clearly stated and not to speculate upon latent imponderables.

Reference in this connection may also be made to a recent decision of the Supreme Court in Gram Panchayat, Kanoda v. Dir. Consolidation of Holdings Haryana reported in : AIR 1970 SC 763.

In Ajay Pradhan Vs. State of Madhya Pradesh and Others, in U.P. Bhoodan Yagna Samiti, U.P. Vs. Braj Kishore and Others, and in Mithilesh Kumar v. Prem Behari reported in 1989 54 BBCJ (SC) 1 the Supreme Court has clearly held that where the words used in a statute are, plain and unambiguous recourse to the interpretation of the statute can not be taken.

In Atma Ram Mittal Vs. Ishwar Singh Punia, the Supreme Court while interpreting Section 1(3) and 13 of the State Rent Control Act held that while construing a statute, the language, background, context and purpose all have to be borne in mind.

In my opinion, therefore, Rule 10 of Order 26 applies in a case only where the Commissioner not only makes a local inspection but also reduces to wilting the evidence taken by him, only then his report together with such evidence become evidence in the suit and form part of the record.

From a plain reading of Order 26 of Rule 9 of the Code, it would appear that in most of the matters referred to therein, evidence would be necessary to be taken by a Commissioner. However, there may be a case, where the Court wants only the report of Commissioner which he may make upon making local inspection upon an inspection made by him for which no evidence is required to be by him and reduced to writing such a report will not come within the purview of Rule 10 of the Code.

This aspect of the matter has not been considered in any judgment cited before us by the learned Counsel for the parties.

However, assuming that even in such a case, the provision of Order 26 Rule 10 shall apply let us examine what would be the effect thereof.

In Shib Charan Sahu and Others Vs. Sarda Prasad and Another, upon which strong reliance was placed by Mr. Eqbal this Court distinguished the decision of the Madras High Court in Kunhi Kutti Ali and Another Vs. Muhammad Haji (died) and Others, and in Pazhachcri Panangat Blahayil Karnavan and Anr. v. Arakal Kalapurayil Kalliani Amma''s Children Achuta Menon and Ors. AIR 1932 Mad 482 and held:

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 commissioners'' reports into consideration and deciding as between these various reports which of them was preferable and this habits of sending out commissions whether simultaneous or consecutive has 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 principle such as in contend in this appeal. There is nothing in Order 26 Rule 10 CPC 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 the all materials are before the Court it may at the time of delivering judgment attached very little or no weight to the first commissioners'' 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 That the argument is entirely unsound, is seen on considering what, if it were true, would be the position in case of an appellate court, the first court''s decision on the matter of fact is not final and if the contention were to be accepted it would prevent an appellate court from taking into consideration the first commissioner''s report this consideration alone is sufficient'' to demonstrate fallacy of the argument. It has been necessary to deal with this new point because of the misplaced interpretation of the Madras cases which in my opinion lay down such position as has been contend for and it is necessary to prevent this argument being raised in future to the embarrasment of lower courts : but as the matter of practice the argument was rarely not even open to the Appellants who did not raise it before the judge in the court below.

The same view appears to have been taken by the Calcutta High Court in B.C. Ghose v. T.P. Ghose (1966) 70 CWN 266 and by M.P. Memon, J. in Hydru and Another Vs. Govindankutty Nair, and in Dr. P. Subramoniam Vs. K.S.E. Board and Others,

M.P. Menon, J. in Subramoniam''s case has taken into consideration his earlier decision in Hydrus as also the subsequent decisions of the Kerala High Court in Swami Premananda Bharathi Vs. Swami Yogananda Bharathi and Another, and in Shivraman v. V.C. Narayanan AIR 1987 Ker 83 as also the decision of this Court in Shivcharan Prasad''s case (supra) and the decisions of the Madras High Court referred to therein.

In Chhotu Mauju Vs. Gurbhajan Singh, a learned Single Judge of the said Court also followed Shivcharan Prasad''s case (supra).

In Roy and Co. and Another Vs. Sm. Nani Bala Dey and Others, the Calcutta High Court accepted the report of the Pleader Commissioner as his honesty has not been challenged and it was found that he did not blindly adopt the auction of the Plaintiff.

On an aualysis of the decision in Subramoniam''s case (supra), it appears that it was held therein that ;

(a) In view of the difference in phraseology used in Order 26 Rule 10 and Order 26 Rule 14 of the Code of Civil Procedure, the Court in the former cast has no jurisdiction to set aside, the award.

(b) In a case, where the Court it dissatisfied with the report of the Pleader Commissioner, its jurisdiction is confined to refer the matter to the same Commissioner for further inquiry.

(c) The decisions of the Madras High Court and other High Courts which state that ns a second Commissioner an not be appointed unless the report of the first Pleader Commissioner is set aside, do not lay down the correct law as a second Commissioner, can be appointed in terms of Section 14 of the General Clauses Act.

(d) Even in a case where second Commissioner could be appointed, the report of the first Commissioner can not be set aside in view of the Order 26 Rule 10(3) of the Code of Civil Procedure.

On (he other hand, in the decisions relied upon by Mrs. Jaya Roy, it has beta held that the court has the power to set aside a report of the Pleader Commissioner.

In Gopal Behera and Others Vs. Lokanath Sahu and Others, a learned Single Judge held ;

Therefore, in a case where objection is raised to the report of the Commissioner the Court has to be satisfied that the local investigation was complete and free from error before he accepts the report. In a case where the Commissioner is examined as witness either by the Court or by any party with permission of the Court, this point has to be judged in the light of the evidence of the commissioner in Court. In case there are serious discrepancies between the statement made by the Commissioner in Court and the contents of the report of the evidence during local investigation it will not be safe to conclude that the report is free from error and it is reliable and acceptable. It is to be borne in mind here that Commissioner''s report is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. Therefore, if a defecitve report is accepted brushing aside the serious discrepancies in the evidence of the Commissioner and his report and materials recorded during local investigation such a report instead of assisting the court is likely to mislead him.

In my opinion, however, contrary opinions as referred to the decisions of the Court referred to hereinbefore have taken extreme stand.

It is well known that a report of a Commissioner like any other report is merely a piece of evidence, even if the same becomes part of the record in terms of Order 26 Rule 10 of the Code of Civil Procedure,

It is true, as has been held by the Privy Council in AIR 1940 3 (Privy Council) that the Court should not normally interfere with the result of a long and careful local investigation except upon clearly defined and sufficient grounds demarcated.

However, there can not be any doubt that the Court, for sufficient reasons, order the appointment of a fresh commission or direct a further inquiry by the same Commissioner who has already been appointed.

Sub-Rule 3 contemplates only a further inquiry by the same Commissioner but does not contemplate the issue of a fresh commission covering the same ground whereas, in some cases, it has been held that the Court has power to appoint a new Commissioner to do the same job entrusted to the first Commissioner.

The situation, in my opinion, would vary from fact of each case.

In a case, where evidences are taken and thereafter, a report is submitted by the Commissioner, both the evidence and the report shall form part of the record and in such a situation, although, the Court may issue a second commission, the evidence and the report submitted by the first Commissioner would not be wiped out from the reports.

However, in a situation like the present one where upon an objection filed by an authority, the court comes to the conclusion that the Commissioner has not only over stepped his limits but his report is a partisan and biased one, the court will be entitled to set aside the report.

I do not agree with the decision of this Court in Shivcharan Sahu''s case (supra) and the other decisions following the same that the court will have no jurisdiction whatsoever to set aside a report. The reasonings given in those decisions, according to me, are not correct.

62-A. The Court at different stages of the proceedings while trying the suit may pass several interlocutory orders. Such interlocutory orders may be challenged in an appeal preferred from the decree passed in the suit in terms of Section 105 of the Code of Civil Procedure. If the report of a Commissioner is set aside by the trial court and a Commissioner is appointed for the self same purposes, such an interlocutory order effecting the merit of the case may also be challenged, in an appeal and the appellate court, in such a situation, would certainly be entitled to consider both the reports and prefer one to the other,

The appellate court, therefore, may not agree with the order of the trial court whereby the report of the Commissioner was set aside while considering the merits of the case in an appeal.

Such a power of the appellate court being an inherent one, the question as to whether what would be the effect of the order setting aside a report of a Commissioner vis-a-vis the consideration thereof by the appellate court does not arise.

Such a question, in my opinion, is wholly irrelevant for interpretation of Order 26 Rules 9 and 10 of the Code.

In this connection, it may be mentioned that an order rejecting and consequently setting aside of a report of Commissioner may have to be dealt with by the appellate court in the same manner when it deals with improper rejection of evidence and/or refusals to admit a document by the trial court which according to him, is inadmissible but found to be admissible in evidence by the appellate court.

In construing Order 26 of Rule 10 and Order 26 Rule 9, the principles of resjudicata can not be taken in aid of nor the same is relevant for the simple reason that as in this case, the impugned order shall operate as resjudicata in the subsequent stages of the suit and thus even at the time of final hearing of the suit, the court will not be entitled to look to the report submitted by the Advocate Commissioner, inasmuch as, as noticed hereinbefore, it has been held that the report of the Commissioner is partisan in nature and in giving such report, he has overstepped his limit and he has not performed his duties which he was supposed to do so.

Such findings of the learned trial court being final, the same can not be re-opened even at the stage of final hearing of the suit and thus shall operate as resjudicata at the subsequent stages of the suit.

An order passed in revision preferred against such an order will also be immaterial inasmuch as if the revision is dismissed on merits, the same would operate as resjudicata even in appeal but if this Court merely refusal to interfere with the impugned order on the ground that the trial court has not committed any jurisdictional error without considering the merit of the reports, the same may be considered by the appellate court also.

The Division Bench in Shivcharan Sahu''s case had no occasion to consider the aspects of the matter with which we are concerned in this case.

Further, in that case the Divisktt Bench distinguished the decisions of the Madras High Court in Kunhi Kutti Ali and Another Vs. Muhammad Haji (died) and Others, and in Pazhacheri Panangat Blahayit Karnavan and v. Arakal Kalapurayil (sic) Amma''s Children Achuta Menon and Ors. AIR 1932 Mad 482, on the ground that if those judgments, the Madras High Court was endeavouring to correct a very bad tendency on the part was of the Munsifs of the Malabar districts who appeared to have got the habit of sending out simultaneous commissions to investigate the same issue of fact and then taking the commissioners report into consideration and deciding as between these various reports which of them was preferable.

It is true that in those cases, the Madras High Court deprecated the practice followed by the civil courts of Malabar District but they did so on interpretation of Order 26 Rule 10(3) of the Code of Civil Procedure.

The decisions of the Madras High Court, therefore, in my opinion, were not distinguishable on that ground

Even in Shivcharan Sahu''s case (supra) the Division Bench held that a second pleader commissioner may be appointed if the court is dissatisfied with the report of the earlier pleader Commissioner.

As noticed hereinbefore, such a power to appoint the second Pleader Commissioner does not appear to exist on a plain reading of Order 26 Rule 10(3) of the Code of Civil Procedure.

Order 26 Rule 10(3), therefore, must be held to be applicable only in such cases where the court finds deficiency in the report of first Commissioner on any point and considers it necessary to exercise his discretion to direct the same Commissioner to remedy to the difficulties or by appointing a second Pleader Commissioner.

In Swami Premananda Bharathi v. Swami Yogananda Bharathi and Anr. AIR 1985 Kerala 83 a Division Bench of the Kerala High Court considering a large number of Incisions held:

The decision of Madras High Court in T.S. Pichu Ayyangar Vs. Sri Perarulala Ramanuja Jeer Swamigal, Dharmakartha and Manager of Sri Alagia Nambirayar Temple, takes the view that the order passed by the lower court in this case dated 21.12.1974 (as upheld in C.R.P. No. 41/1975) is open to attack, in the appeal filed from the final decree, since the order impugned effects the decision of the case. The said decision has been followed in Subha Reddiar v. Seetharaman AIR 172 Mad. 421. Counsel for the 1st Plaintiff Sri P. Sukumaran Nair, contended that the decision of the Madras High Court in Pichu Ayyangar''s case AIR 1940 Madras 756 considered the matter only from the stand point of Section 105(1) CPC but the order impugned will constitute '' resjudicata" and so the matter cannot be agitated again. Counsel relied on the decisions reported in Balkishan Dass Vs. Parmeshri Dass deceased substituted by Madhuri Sharan Sharma and Others, Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and Another, and Ramsarup Dass and Others Vs. Pyare Das and Another, It does not appear that the decision of the Madras High Court in T.S. Pichu Ayyangar Vs. Sri Perarulala Ramanuja Jeer Swamigal, Dharmakartha and Manager of Sri Alagia Nambirayar Temple, was brought to the notice of the Punjab and Patna High Courts when the decisions in Balkishan Dass Vs. Parmeshri Dass deceased substituted by Madhuri Sharan Sharma and Others, were rendered. But the Madras decision T.S. Pichu Ayyangar Vs. Sri Perarulala Ramanuja Jeer Swamigal, Dharmakartha and Manager of Sri Alagia Nambirayar Temple, was referred to in express terms and dissented from by the Madhya Pradesh High Court while rendering the decision reported in Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and Another, The decision of Punjab, Patna and Madhya Pradesh High Court took the view that the matter cannot be subject to a fresh attack in the High Court, on the principle of resjudicata. But, the principle of resjudicata is totally inapplicable in this case we have held that the court committed a jurisdictional error in appointing a second Commissioner, without expressly setting aside the report and proceedings of the first Commissioner. Whatever decision is rendered by the Court militating against the said position in law, cannot be deemed to have been finally determined by the erroneous decision rendered by the Court and such erroneous cannot operate as resjudicata.

I respectfully agree with the aforementioned observations.

In short, in my opinion, therefore, the interpretation of Order 26 Rules 9 and 10 of the Code, is not and can not be dependant on the order passed by the trial court accepting or rejecting the Commissioner''s report.

The effect of an order passed by the trial court on objection to the report of the Commissioner would depend upon facts and circumstances of each cases.

The Kerala High Court in Dr. P. Subramoniam Vs. K.S.E. Board and Others, held that a second pleader Commissioner may be appointed, in view of the provisions contained in Section 14 of the General Clauses Act.

I am afraid for that purpose, Section 14 of the General Clauses Act may not be strictly applicable, inasmuch as, in view of Sub-rule 3 of Rule 10 of Order 26 of the Code, it is possible to contend that a different intention appears therein so as to put an embargo upon the court to exercise the power of appointment of Commissioner from time to time as occasion arises. If no occasion arises for setting aside the report and the power of the court is confined only to direct further inquiry made by the same Commissioner, Section 14 of the General Clauses Act may not come to an end.

Reference, in this connection, may be made to Sri Nasiruddin Vs. State Transport Appellate Tribunal,

Does that mean that the court has no jurisdiction to issue a second commission under any circumstances? I think not.

Apart from Section 16 of the General Clauses Act, the Court has an inherent power to do so.

If a Commissioner appointed by a court who has so misconceived his duties as to render his report valueless, the court must be held to have the requisite jurisdiction to wipe out and substract the first report by a specific order to that effect and then proceed to appoint a second Commissioner.

Brother Roy, J. referred to the decision of the Supreme Court in Padam Sen and Another Vs. The State of Uttar Pradesh, for the proposition that the court can not take recourse to Section 151 of the CPC for passing as order which would be contrary to an express provision and, therefore, opined that that thus Section 16 of the General Clauses Act, 1897 can not be taken recourse to.

Section 151 of the Code saves the inherent power of the court. It is true that such a power can not be taken recourse to, when there is a specific provision contained in the Code of Civil Procedure.

In Padam Sen''s case (supra) the Supreme Court held that power saved by Sections 151 of the Code are not power over substantive right which a litigant possess. It therefore held that court can not direct a Pleader Commissioner to seize the books of account from a party forcibly as a party has vested right over his account books. It can (sic) them and if not produced, it can draw an adverse presumption but it can not appoint a Commissioner to seize the accounts book in possession of the Plaintiff upon an application by the Defendant that he has apprehension that they will be tampered with.

In my opinion, therefore, Padam Sen''s case (supra) is not an authority for the proposition relating to the power of the court with regard to appointment of a second Commissioner.

If this view is taken, it has to be held that a Second Pleader Commissioner can not be appointed at all on the basis of interpretation of Sub-Rule 3 of Rule 10 of Order 26 of the CPC in terms of the decision of the Kerala High Court in Subramoniam''s case (supra).

In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, the Supreme Court distinguished Padam Sen''s case holding:

These observations clearly mean that the inherent powers are not in any way controlled by the provision of the Code as has been specifically stated in Section 151 itself. But, those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice.

Reference in this connection may also be made to Bajrang Rai and Ors. v. Ismail Mian and Ors. AIR 1973 Pat 339.

Even in Subramoniam case, the power to appoint a second Commissioner has been traced to Section 14 of the General Clauses Act.

Order 26 Rule 9 of the CPC docs not apply to a execution proceeding but even in such proceeding, a Commissioner may be appointed.

Thus, in Bhagwati Prasad Hajela Vs. Bishambhar Nath Singh Kapoor, it was held that the Executing court has jurisdiction to direct delivery of possession through a Commissioner.

In Alekh Chandra Rath and Anr. v. commissioner of Land Records & Settlement Orissa and Anr. : AIR 1989 Ori 214 it was held that the court for sufficient reasons may direct protection of the property also in exercise of his power conferred upon it u/s 151 of the Code of Civil Procedure.

In AIR 1947 56 (Nagpur) it was held that Order 26 Rule 10(2) does not apply to an execution proceeding.

In that case, it was held:

If in execution proceedings it was necessary to know whether there was an encorachment by the Appellant and if the issue of a commission was necessary for the purpose that commission should have been issued when the Appellant was before the Court. In the present case the Commissioner was appointed before the Appellant was brought before the Court by issue of notice. The Courts below were therefore wrong in using the map and the report of the Commissioner as evidence in the case and basing their decision on them. It is true that there is evidence of the decree-holder also that there was encroachment by the Appellant, but that evidence has been considered with the report and the map of the Commissioner. The Appellant was entitled to have the Commissioner before the court for cross examination. I am of the opinion that this is a case in which the decree holders who got the order for the issue of commission and got the map prepared by the Commissioner behind the back of the Appellant ought to be called upon to produce the Commissioner before the court for examination and cross-examination by the other side to prove the map made hy him.

Taking into all facts and circumstances into consideration, I am of the view that the court has the requisite power to appoint a second commission upon setting aside the report of the first commissioner, if any situation arises therefor.

If any other view is taken, the same would lead to an absurdity as even in a situation like the present one, where the court has found that the report of the Pleader Commissioner is partisan in nature or was otherwise invalid or improper, the court will be helpless to do anything in the matter. It is well known that Rules or Procedures are handmaid of justice. No procedure except which are mandatory in nature binds the court absolutely. It can always mould the procedure as to suit a particular situation in order to do complete justice between the parties. A matter not provided in the Code would attract the inherent power of the court.

It is true that the phraseology used in Rule 10(3) and 14(3) of Order 26 of the Code are different. In Rule 14(3), such a provision has been specifically been made in view of the fact that once the Pleader Commissioner''s report is accepted with or without modification, the same would amount to a judgment and a final decree is merely to be passed on the basis of such a report. Such a report forms part of the decree.

Order 26 Rules 9 and 10 may be attracted to deal with different situations. Thus, in a case, where the court finds that the report is a nullity or otherwise improperly obtained or therein the Commissioner has not followed the directions of the court, such a report will be inadmissible in evidence and thus the court must be held to have inherent power to set aside the said report.

A Commissioner exercises a quasi-judicial function. Such a functionary, therefore, must perform his duties within the four corners of his writ of appointment and if he does not do so, his report will be a nullity having been made without jurisdiction.

It can not, therefore, in my opinion, be said that in no circumstances, the court will have no right to set aside the report.

In this situation, in my opinion, the court has not only has the requisite jurisdiction but also a duty to set aside such a report and direct a local inspection be made by another Pleader Commissioner.

Some such instances, which may be considered at this stage are:

(a) Violation of the provisions of Order 26 Rule 18 of the Code (See: Mandera Mukherjee Vs. Sachindra Chandra Mukherjee and Others,

(b) where an inspection is made behind the back of the parties as for example giving notice to the parties to make an inspection on a Particular date but holding inspection on another date;

(c) when a clandestine inspection was made at the behest of the one of the parties;

(d) where only one of the parties could project his view points and the contentions of the other parties were totally ignored;

(e) where the report of the Commissioner it violative of the directions of the court and

(f) where it is distructive of the purpose and object for which a commission was issued.

A Commissioner appointed by a court is bound by the direction contained in the writ of appointment. If, therefore, the Commissioner ignores the writ and submits a report which is contrary to or inconsistent with the direction contained in the writ of appointment the same would be a nullity. In a case where the Commissioner delegates his power to some other persons or where he does not carry out any scientific measurement although required to do so, the report will be vitiated in law.

In all situations, the court, in my opinion may set aside the report.

Even in case in Richards v. Martis 1875 (23) SWR 93 the Calcutta High Court held that a court has the power to appoint a second Pleader Commissioner.

The said decision was distinguished in (sic) ramoniam''s case (supra) on the ground that (sic) that point of time, the provisions were governed by Section 180 of the CPC 1859, which did not contain a provisions like Sub-rule 3 of Rule 10 of Order 26 of the Code.

This finding is evidently contrary to the other findings of the same decision.

If the court has an inherent power to app oint a second Pleader Commissioner in terms of Section 14 of the General Clauses Act or otherwise, evidently, Sub-Rule 3 of Rule 10 of Order 26 of the Code would not make any difference in exercising such a power.

Sub-rule 3 of Rule 10 of Order 26, as has been held in Subramoniam''s case, contemplates further inquiry meaning thereby additional Inquiry by the same Pleader Commissioner and not by a second Pleader Commissioner.

A second Pleader Commissioner, thus may be appointed when the court is dissatisfied with the report of the first Commissioner.

In Sone Kuar and Ors. v. Baidyanath Sahay : AIR 1926 Pat 462 Dawson Miller, J and Foster, J held:

The Commissioner''s report was merely evidence in the case. Although generally accepted, when the Commissioner performs his duties satisfactorily it is not binding upon the court. The Court has full power to arrive at its own conclusions. Even if they are at variance with the report, and I am not prepared to hold that the fact that the report is based upon inconclusive material or upon an inspection indifferently performed imposes an imperative duty upon the Courts to order a fresh inspection. In such cases the court must exercise its discretion and may or may not require a fresh inspection. If the court considered the evidence sufficient to enable it to decide the case, it has, in my opinion, full discretion in the matter, and unless a hither tribunal finds that discretion was improperly exercised, its judgment cannot be called in question merely because it refrained from ordering a fresh inspection.

It is, therefore, clear that court has the power to appoint a second Commissioner if the facts and circumstances of the case so required.

In a situation like the one which arises before the Orissa High Court in Gopal Behara''s case (supra) also, in my opinion, report of a Commissioner would be vitiated in law and would be liable to be set aside.

Recently in Darshan Singh and others Vs. The State of Punjab, this Court in view of the finding of the trial court to the effect that although the Pleader Commissioner did not measure the suit land scientifically but still found that the Defendant had made encroachment over the Plaintiff''s land, set aside the judgment and remanded the matter to the trial court with a direction that the alleged encroachment be measured again by a qualified Commissioner and be satisfied that the measurements made by him and report submitted by him are correct and scientifically done.

Taking thus all facts and circumstances into consideration, my findings are:

(a) Order XXVI, Rule 10 of the CPC will have no application where Commissioner does not take any evidence whatsoever.

(b) Even in a case where Order XXVI, Rule 10 applies, the court will have jurisdiction to appoint a second Pleader Commissioner upon setting aside the earlier report or otherwise depending upon the facts and circumstances of the case.

(c) The Court has also power to direct further inquiry in the matter by the same Pleader Commissioner on some of the points and/or by remitting the entire matter to him.

In view of the facts and circumstances of the case, it must be held that there is no merit in this Civil Revision application, which is accordingly dismissed.

However, in the facts and circumstances of the case, there will be no order as to costs.

R.N. Sahay, J.

I have had the privilege of perusing the opinion of my Lords S. Roy, J. and S.B. Sinha, J. on the question as to whether a court has power to set aside the report of the Pleader Commissioner appointed under Order XXVI, Rule 9 of the Code of Civil Procedure, if the report is found to be unsatisfactory. My Lord S. Roy, J, has held that the court has no such power, having regard to the provision contained in Order XXVI, Rule 10(3) of the CPC and a report can not be set-aside by resort to Section 151 of the CPC or Section 14 General Clauses Act. I agree with Roy, J, that Rule 10 of Order XXVI applies in relation to Commissioner appointed under Rule 9 and I find myself unable to agree with the view of Sinha, J, that Rule 10 is not attracted where Commissioner is appointed under Rule 9 of Order XXVI. Sinha, J, however, has also proceeded on the assumption that Rule 10 is applicable.

I, however, find myself unable to subscribe to the view taken by Roy, J, that the report of Commissioner cannot set aside u/s 151 of the CPC because Rule 10(3) only empowers a court to direct further inquiry if the report of the Commissioner is found to be unsatisfactory. In Dr. P. Subramoniam Vs. K.S.E. Board and Others, M.P. Menoa, J, has held that "even though a power to issue a second Commission could not be found in Rule 10(3) such power could be traced to the well-known principle that the power to issue a Commission is not exhaused with the first exercise thereof". I agree with Sinha, J, that the court has power to issue second commission after setting aside the report of first Commissioner u/s 151 of the Code of Civil Procedure.

I agree with Sinha, J, that in the extraordinary facts and circumstances of this particular case the trial court was justified in setting aside the report of the Commissioner which was vitiated for more than one reasons as noticed by Sinha, J. The report of the Commissioner in the present case is absolutely worthless and it is of no consequence even if the report was not set aside as no court would place reliance on such a report. Even Mr. M.Y. Eqbal learned Counsel for the Petitioner addressed no argument supporting the report of the Commissioner.

Roy, J, has been pleased to follow the; decision of this Court in Shib Charan Sahu and Others Vs. Sarda Prasad and Another, which was followed in Chhotu Mauju Vs. Gurbhajan Singh,

In my humble opinion, the decision in Shiv Charan Sahu case was rendered in the context of his own facts and clearly distinguishable on facts the facts of the present case. The other case cited at the bar are all distinguishable on facts and can not be cited as authority for the proposition that the court is powerless to set-aside the report of the Commissioner. In Shiv Charan case (supra) it was held that the report of the first Commissioner wiped off the record in case the court is dissatisfied with his report and a second commission is ordered. This question was considered at the stage of Letters Patent Appeal. There was no order of the trial court or the appellate court setting aside the report of the Commissioner. The first report was in favour of the Plaintiffs. The Court being dissatisfied with the report issued Pa second Commission whose report was contrary to the first report. The trial court relied on the second report but the Subordinate judge on appeal considered both the reports id the evidence. Courtney Terrell, C.J. rejected the argument that when the Judge is dissatisfied with the report of the Commissioner and sees fit to direct a second commission to issue, wipe the first commissioners report of the record entirely. This argument was founded upon the decision of Madras High Court, in A. I. R. 1931 Mad. 73 : 1932 Mad. 482. Shiv Charan case (supra) the trial court being dissatisfied with the first report appointed another Commissioner but what was ground for dissatisfaction is not found in the judgment. There the trial court had not recorded that the report of the Commissioner was vitiated because of serious infirmities as found in the present case. This decision cannot be held to lay down that in no case the report of the Commissioner can be set-aside. It is well settled that the judgment must be read in the light of the Sets of the case in which they are delivered. Lord Halsbury in Quinn v. Leatham (1901) ACC 495 said:

Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expression are to be found.

To quote Lord Halsbury again:

A case is only authority for what it actually decided. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it.

In The Regional Manager and Another Vs. Pawan Kumar Dubey, it was held that "it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts".

Courtney Terrell, C.J. has further held that if the argument was accepted that the first report of the Commissioner is to be wiped out of the record, it would prevent the appellate court from taking into consideration, the first Commissioner report. This logic of Courtney Terrell, C.J. has been adequately met by Sinha, J and I agree with his view that such a question is wholly irrelevant for interpretation of Order XXVI Rule 9 of the Code of Civil Procedure. Hypothetical answer given to Hypothetical question raised does not constitute ratio decidendi. In Swami Premnanda Bharathi v. Swami Yognanada Bharathi and Anr. reported in AIR 1935 Ker. 83 it has been held that any interlocutory order passed by the trial court cannot deter the superior court to consider the matter afresh, when the matter comes up before the court of appeal by virtue of Section 105(1) of the Code of Civil Procedure.

The decision in Chhotu Mauju Vs. Gurbhajan Singh, which followed in Shib Charan Sahu and Others Vs. Sarda Prasad and Another, is also distinguishable on facts.

I entirely agree with Sinha, J, with his opinion reflected in paras 60 to 65 of his Lordships Judgment.

In the result, I agree with Sinha, J. that there is no merit in this Civil Revision application and it be dismissed without costs.