Cheriyakutty vs A.K. Madhavan Unni

Varghese Kalliath, J.—Plaintiff in a suit for fixing the boundary of the suit property wanted a commission to be appointed for the inspection of the suit property and to make a proper report and plan of the suit property. The court ordered a commission. An Advocate Commissioner executed the commission and submitted a report and plan, Both sides filed objections to the report and plan. The court was convinced that there was merit in the objections and set aside the commission report.

The Commissioner filed a memo for additional remuneration. He wanted as additional remuneration a sum of Rs. 5,000/-The court ordered the plaintiff to pay an additional remuneration of Rs. 1,500/-.

The grievance oi the revision petitioner is that since the Commissioner''s report and plan were set aside, the plaintiff has not been benefited by the work or the commission and in the light of this important circumstance, the court might not to have exercised its discretionay jurisdiction directing the plaintiff to pay an additional remuneration of Rs. 1,500/- to the Commissioner. A senior counsel, Shri N. Viswanatha Iyer, who appeared for the petitioner, submitted that normally, he would not have challenged an order of the court below directing payment of additional remuneration to a Commissioner. But, in this case, he feels that his client has been put to unmerited loss and hardship. To bear out the submission, the counsel adverted, to the power source of [he court in the matter of allowing additional remuneration to the Commissioner appointed by the Court. He rightly submits that there is no clear and explicit power in the Code for the court to direct the plaintiff or the defendant as the case may be, to deposit an amount to be paid to the Commissioner as additional remuneration.

Order XXVI, Rule 15, C.P.C. which is the relevant rule for the expenses of commissions docs not explicitly provide for payment of additional remuneration to the Commissioners. Rule 15 reads thus :--

"15(1) Expenses of Commission to be paid intoCourt. - Before issuing any commission under this Order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into court by the party at whose instance or for whose benefit the commission is issued.

(2) Before executing and returning any commissions issued by foreign courts under the provisions of Section 78, the Court or the Commissioner required to execute the commission may levy such fees as the High Court may from time to time prescribe in this behalf in addition to''the fees prescribed for the issue of summons to witnesses and for expenses of such witnesses tinder Rule 2 of Order XVI"

Rule 150 of the Civil Rules of Practice dealing with matters relating to commissions also does not make any piovision regarding payment of additional remuneration to the Commissioner. Sub-clauses (2) and (3) of Rule 150 of the Civil Rules of Practice do not specifically refer to any power to direct the party who has taken out commission to pay an additional remuneration to the Commissioner, though those rules direct the applicant to deposit into court the sum fixed by it to be paid to the Commissioner at the time of ordering commission and in emergent cases payment of the amount due to the Commissioner direct by the applicant when the order appointing the commission is issued.

In tnis context, the root question that calls for decision is whether there is any power or jurisdicition in the court to order additional remuneration to be paid to the Commissioner. Since there is no specific power discernible in any of the rules in Order XXVI, C.P.C and the rules in the Civil Rules of Practice, is is not at all difficult to trace the source of power in Section 151, C.P.C. I have no doubt that the court which appointed the commission has the power to direct the party who is bound to pay the Commissioner, to deposit of pay an additional sum to the Commissioner, if the court deems fit to do so. The reason is obvious : it is not possible with exactitude to estimate the actual fee payable for the work to be done by the Commissioner, at the time the court orders the appointment of commission. This power is an inherent power of the court which stems from the power to appoint a commission.

The saving of inherent power u/s 151, C.P.C. is for the purpose of doing justice according to law and must take in its fold, as a necessary adjunct and as inherent, in th,e very functioning of the court, all such powers as may be necessary to do fair justice to all concerned. It is said that the inherent power of the court is intrinsic and essential and it has its roots in necessity and its width and amplitude are co-extensive with necessity.

Now the counsel referred me to the decision reported in Surendra Nath Sen Gupta Vs. Secy. of State, (2), wherein Macpherson, J. dealing with the correctness of a direction by the lower court to pay additional remuneration to the Commissioner observed that courts should not order payment of a litigant''s money "without return nor make a gift of it to a charlatan who has only made a pretence of executing a commission." The learned Judge further pointed out that ''it is incumbent on the court scrupulously to protect the person who has deposited money towards a Commissioner''s fee and all the more since he is powerless to protect himself against the Commissioner.''

I cannot agree with the language used in the first quote but I fully agree with what is said in the second quote. When the power is a discretionary power it has to be exercised judicially and with utmost care and caution. It shoud be exercised not wantonly but scrupulously with a view to do justice to the Commissioner as well as the party who is bound to pay the additional remuneration. Discretion when related to a court of justice means a well grounded judicial discretion guided and guarded by mature considerations of all things which are relevant to the issue. Judge is certainly free but he is still not wholly free. He is to exercise his discretion informed by the judicial necessities of the matter. It should not sound fanciful, undisciplined or self-opinioned. It should not be whimsical but should be legal and regular. The Court should fix the remuneration for the execution of the commission commensurate with the importance of the work, the time spent for the execution of the commission and also how efficiently the work has been done. If the Commissioner fails in executing the commission effectively and efficiently and merely executes it nominally, certainly he cannot claim a proper remuneration.

I feel that what Machpherson, J. said in Surendra Nath Sen Gupta Vs. Secy. of State, (2) which I have quoted in this order is a reflection on the wanton and careless attitude of certain courts in the matter of fixing the remuneration of Commissioners. I should say that courts should not by their orders give room to the reproach that it has distributed overly and lavishly the litigants'' hard earned money to the Commissioners without taking into consideration the actual work done by the Commissioners. If the Commissioner has done the work efficiently and bona fide he , is entitled to his remuneration, even though ultimately the court did not accept the report.

The facts revealed in this case will not justify a conclusion that the trial court has exercised its discretionary power without taking into consideration the circumstances relevant for the decision. I feel I have no rational justification for interfering with the order exercising my power u/s 115, C.P.C. C.R.P. is only to be dismissed. I do so. No costs.