Gopalakrishnan vs P. Shanmugam

Raju, J.—Having regard to the nature of the issues involved for consideration in the miscellaneous petition as well as in the main revision

being one and the same, the revision itself is taken up for final hearing.

The revision has been filed by the defendant/respondent in the Courts below against the order of the learned District Munsif, Mayiladuthurai

dated 18-7-1994 made in I.A. No. 1571 of 1994 in O.S. No. 301 of 1994 allowing the claim of the respondent herein and directing the

appointment of the taluk surveyor of Mayiladuthurai taluk to inspect the suit property in question and submit a report. It is seen that the plaintiff has

earlier filed an application for the appointment of a surveyor to inspect and submit a report and the respondent has also filed another application for

appointing an Advocate-Commissioner to note the physical features in the suit property and file a report. The Advocate Commissioner appears to

have submitted a report after inspection and the surveyor appointed at the instance of the respondent also filed his report. Thereupon, the

respondent appears to have taken out an application for re-issuing the warrant to the same surveyor to file a further and additional report. Though

initially the application was said to have been opposed, the petitioner also thereafter was willing to have the communique re-issue to the surveyor

and the same was said to have been ordered. But the respondent did not pursue steps in that regard to have the warrant re-issued to the same

surveyor, but instead came out with the application in question in I.A. No. 1571 of 1994 seeking for the appointment of a fresh surveyor on the

ground that the surveyor earlier appointed may not do his work impartially in view of the earlier defective and perfunctory report he was said to

have filed. This application has been opposed by the petitioner herein.

After considering the claims of the contesting parties before the Court below, the learned District Munsif, by an order dated 18-7-1994 allowed

the application as instead of the earlier surveyor, appointed the Taluk surveyor of Mayiladuthurai taluk for the purpose of inspection and submitting

a report. This order is challenged on the ground that the Court below has committed a grave error in allowing the application without coming to a

conclusion regarding the existence of the necessary required pre-requisite to warrant rejection of the earlier reports on record and that there the

order under challenge cannot be sustained. It is also contended that the reasons assigned in paragraph 5 of the order are no reasons in the eye of

law justifying the appointment of a new Commissioner in the teeth of already existing two reports in the matter, one submitted at the instance of the

petitioner through an Advocate Commissioner and the other submitted at the instance of the respondent through a Surveyor Commissioner. The

learned counsel for the respondent vehemently contended that the order of the Court below does not call for any interference since the reason

assigned in the order justified the appointment as prayed for by the respondent and that such appointment came to be made only on the

representation that the respondent may not get an impartial treatment in the matter, if the earlier surveyor alone is directed to re-do the matter. He

further conceded that the petitioner would not in any manner be prejudiced by the appointment of the surveyor in question and that it will be in the

interest of all the parties concerned to have the commission issued and proceeded with, as ordered by the Court below.

I have carefully considered the sub-missions of the learned counsel appearing on either side. In my view, the Court below committed a grave

error and a great blunder too in mechanically ordering the appointment of Commissioner, liberally on the requests made, without proper and due

application of its mind, to the conditions stipulated in the relevant provisions of law, to be adhered to, before embarking upon passing order for

permitting second and subsequent Commissions in the very same matter. Order XXVI, Rule 9 of the CPC provides for the appointment of

Commissions for local investigation and it stipulates that 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. While considering the scope of the powers, the duties and obligations as also the considerations to be kept in view before proceeding

to appointee one or more than one commission or subsequent Commissions, Courts have laid down certain principles and guidelines to be adhered

to. It has been held that a Court cannot issue a second Commissioner, mechanically for the mere asking without setting aside the earlier report and

even if the Court chooses to re-issue the Commission, sufficient and proper reasons have to be recorded and that an indiscreet and indiscriminate

exercise of power, in this regard is likely to affect even a fair trial of the suit or the proceedings. It is, therefore necessary to see whether the Court

below, on the facts and circumstances of the case, has properly applied its mind and discharged its duties in accordance with law, after due

application of mind to the relevant considerations before ordering for the appointment of a different surveyor and issuing a second Commission.

Even a cursory perusal of paragraph 5 of the order of the Court below would go to show that there was no consideration worth mentioning and

that the said court was totally oblivious to its responsibilities and mechanically ordered for the issue of the second Commission, merely on the

ground that the respondent in the Court below namely the petitioner herein would not in any manner suffer any damage by another surveyor being

appointed to inspect and submit a report more so when the respondent is giving to the charges therefore. This can hardly be said to be a reason in

the eye of law to issue a second Commission in the teeth of the availability of a report already by an Advocate Commissioner, no doubt appointed

at the instance of the petitioner herein and a report of the Surveyor earlier appointed at the instance of the respondent plaintiff.

The learned counsel for the respondent herein vehemently contended that there were some defects noticed in the earlier report of the

Commissioner and it is, therefore, the respondent felt that the earlier Commissioner may not impartially discharge his duties, and that is why, the

request for a different Commissioner came to be made and countenanced by the Court below. Though, from the pleading and that too the affidavit

of his own client the learned counsel for the respondent wanted to contend that the earlier report submitted by the surveyor was defective and has

been scrapped, there is absolutely no material whatsoever, on the basis of which this Court can accept such a plea. If a report has been found fault

with and has been scrapped, there should have been a specific judicial order in this regard and in the absence of any such order, the mere assertion

of either of the parties in their respective pleadings constitute no justification or sufficient material or basis for this Court to accept and countenance

such a claim. That apart, I am of the view that merely because on an earlier occasion, the Commission has been re-issued, per is not a justification

also to assume that the earlier report submitted by the Surveyor Commissions was bad or perfunctory or deserve to be scrapped. It might have

been re-issued for getting some additional particulars and that from the fact of re-issue of commission alone it cannot be contended that the earlier

report was bad or that it was scrapped. Further, the very mere fact that the earlier report was not to the liking of the respondent, at whose instance

the Commission was ordered earlier was also not a ground to assume that the said Commissioner will not perform his duties impartially when he is

asked to re-do the Commission. Such allegations cannot be countenanced liberally for the mere making of them in the absence of any specific or

concrete instance furnished or pointed out disclosed lack or want of impartially on the earlier Commissioner. Mechanical and indiscriminate

appointment of more than the Commission, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the

expenses for the commissions are going to be borne by the applicant for the purpose would create an unhealthy practice of not only more than one

report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied with the Commissioner''s report

seeking for the appointment of successive Commissioners till he is able to get a report of his choice. Permitting such things to happen in the course

of trial would lead, not only to the mistrial of the suit, but also will result in grave miscarriage of justice. For all the reasons stated above, I do not

appreciate and cannot approve of the plea taken for the respondent that the second Commission through a different Commissioner is justified in

this case, for the reason just pleaded by the learned counsel for the respondent in this Court.

For all the reasons stated above and for the reason that the Court below has failed to exercise its duties properly and wholly misdirected itself in

ordering a second Commission. In my view the existence of two other reports already on records the order of the Court below is totally

unwarranted on the facts and circumstances of the case and opposed to law. The order of the Court below is therefore set aside and the revision

will stand allowed. No costs.

Revision allowed.