Maya Devi and Others vs Executive Officer, Municipal Board, Balotra and Others

Arun Bhansali, J.—This writ petition under Article 227 of the Constitution of India has been filed by the petitioners against order dated 30.07.2011 passed by the trial court, whereby, the application filed by the respondent Nos. 3 to 5 has been allowed and the trial court has directed that the Commissioner report dated 20.05.2011 will not be taken on record and, in case the parties want, again a Commissioner can be appointed only for the purpose of actual status of the site.

The petitioners-plaintiffs filed a suit for injunction against the respondents, inter alia, with the averments that they were in possession of the suit property and were being threatened with dispossession by the defendants and sought relief that the defendants be directed not to interfere directly and indirectly in their possession and not to dispossess them without due process of law; along with the suit, an application under Order XXXIX, Rule 1 and 2 CPC was also filed by the petitioners, inter alia, praying that defendants be restrained not to interfere with their possession and not to dispossess them without due process of law during the pendency of the suit; alongwith the said application another application under Order XXXIX, Rule 7 CPC was filed by the petitioners, inter alia, seeking appointment of Local Commissioner.

The application under Order XXXIX, Rule 7 CPC was allowed by the trial court by its order dated 20.05.2011 and the following order was passed:-

The Commissioner gave his report dated 20.05.2011, wherein, it was noticed that the defendant-respondent Nos. 3 to 5 took the notices and refused to sign and were not present at the site despite notices and in the report besides indicating the boundaries etc. of the property also indicated that the plaintiffs were in possession and along with the report produced photographs and CD.

After the report was filed, the respondent No. 3 to 5 filed the following objection:-

The objection was replied to by the petitioners and the averments made therein were denied and it was prayed that the application be dismissed.

After hearing the parties, the trial court by its impugned order dated 30.07.2011 came to the conclusion that the Commissioner was required to produce inspection report indicating the status of the site and should not have collected evidence regarding any of the parties; by order dated 20.05.2011 the Commissioner was not required to report regarding the possession at the site; as per Rule 67 of the General Rules (Civil) (''Rules'') a Commissioner appointed under Order XXVI, Rule 9 CPC is appointed for inspection of the site and if the same is not done properly another Commissioner can be appointed and if a report is given by the Commissioner for giving advantage to any of the parties, such report is not proper and cannot be admitted in evidence and, consequently, allowed the application and directed that the Commissioner report will not be taken on record.

It is submitted by learned counsel for the petitioners that the trial court confused itself with the provisions of Order XXVI, Rule 9 and 10 CPC and Order XXXIX, Rule 7 CPC; it is submitted that both the provisions operate in different fields and, therefore, the provisions of Rule 67 of the Rules had no application to the report filed under Order XXXIX, Rule 7 CPC.

It is further submitted that the report of the Commissioner does not amount to collection of evidence; the respondent Nos. 3 to 5 were not present at the site despite notice and it was not even the case of the respondents that they were in possession, even the objection raised was only technical and, therefore, the trial court was not justified in refusing to take the Commissioner report on record.

Reliance was place on Allahabad Bank Vs. Sourendra Nath Shaw and another, , Amiya Bhusan Tripathy Vs. Ahammad Ali, , Kalandi Swain and Others Vs. Braja Kishore Dass and Others, , Subal Kumar Dey Vs. Purna Chandra Giri and Others, and Meghraj Gayatri Devi Vs. Jetling Rajeshwar, .

Opposing the submissions, learned counsel for the respondents submitted that the Commissioner was not required to report regarding the possession of the suit property; a bare look at the report reveals that the Commissioner has unauthorizedly made observations about the possession of the suit property and in case the report is taken on record regarding the report alongwith the pleadings of the plaintiffs, the same would lead to the suit being decreed and, therefore, the trial court was justified in rejecting the Commissioner report, which was beyond the scope of Commissioner''s authority and the order passed by the trial court does not call for any interference.

I have considered the submissions made by learned counsel for the parties.

It would be appropriate to notice the provisions of Order XXVI, Rule 9 and 10 CPC, Order XXXIX, Rule 7 CPC and Rule 67 of the Rules, which read as under:-

"Order XXVI

Commissions to make local investigations. - 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. 10. Procedure of Commissioner. - (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.

(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.

(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."

"Order XXXIX

Detention, preservation, inspection, etc., of subject-matter of the suit. - (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,-

(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;

(b) for all or any of the purpose aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purpose aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule."

"Rules

Particular to be given in the order for local investigation - When issuing a commission for making a local investigation under Order XXVI, rule 9, the court shall define the points on which the Commissioner has to report. No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner."

A bare look at the provisions would reveal that the provisions or Order XXVI and Order XXXIX operate in totally different fields and have different implications as far as the proceedings are concerned. While under Order XXVI a Commissioner can be appointed for elucidating any matter in dispute or ascertaining the market value of any property or the amount of any mesne profit or damages or annual net profits, directing him to make such investigation and report thereon to the Court. Further, under Rule 10 the Commissioner can after local inspection/taking evidence can report in writing to the Court and Sub-rule (2) of Rule 10 provides that the report of Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Further, the Court or the authority can examine the Commissioner touching upon any of the matters referred to him or mentioned in his report and Sub-rule (3) provides for further inquiry i.e. appointment of another Commissioner in case the Court is dis-satisfied with the proceedings of the Commissioner.

Rule 67 of the Rules, which has been relied on by the trial court specifically applies to the commission under Order XXVI and requires the Court to define the points on which the Commissioner has to report and further stipulates that no point which can be conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner.

The provisions of Order XXXIX, Rule 7 CPC do not provide for consequences similar to Order XXVI, Rule 10(2) CPC regarding the report of the Commissioner i.e. the evidence taken by him being evidence in the suit and that they shall form part of the record.

Besides the above, the entire Order XXXIX deals with the temporary injunctions and interlocutory orders, which necessarily makes the order/report under Rule 7 as interlocutory only. Therefore, a report submitted by the Commissioner under Order XXXIX, Rule 7 CPC can at best be utilized for passing temporary injunctions and in case a party wants to rely on the Commissioner report, the Commissioner report shall have to be proved like any other document and the same by itself would not be a evidence in the suit.

Reliance placed by the trial court on provisions of Rule 67 of the Rules also apparently is misplaced, inasmuch as, the same applies to provisions of Order XXVI, Rule 9 CPC and not to appointment of Commissioner under Order XXXIX, Rule 7 CPC.

In the present case, the trial court by its order dated 20.05.2011 sought Commissioner report of the disputed premises. The Commissioner gave a detailed graphic description of the site and while indicting the fact regarding the presence of goods lying at the site also indicated that the petitioners stated that they were in permanent and old possession and also observed that the plaintiffs were residing at the suit site and were in possession.

It would be noticed that respondent Nos. 3 to 5 were issued notices by the Commissioner, which they accepted, however, refused to acknowledge the same and failed to remain present during the course of inspection. Once the report was submitted, a look at the objections quoted (supra) clearly indicate that the respondent Nos. 3 to 5 have not said a word objecting to the factual aspect to indicate that the petitioners were not in possession, on the other hand, they have specifically indicated that a ''legal objection'' was being raised to the report.

In view of the fact that so called legal objection only has been raised by the respondent Nos. 3 to 5 and the factual aspect has not at all been disputed as reported by the Commissioner, there was no occasion for the trial court to scrap/refuse to take on record the Commissioner report, which except for the so called legal objection, has not at all been disputed.

The apprehension expressed by learned counsel for the respondents that in view of the Commissioner''s report, wherein, possession of the petitioners have been indicated, the same may lead to final disposal of the suit itself, has no warrant in law, inasmuch as, the petitioners-plaintiffs would have to prove their possession as a fact before the trial court by leading proper evidence and, even if, they were to rely on the Commissioner''s report, as noticed hereinbefore, the same will have to be proved like any other document.

The judgments cited by learned counsel for the petitioners distinguishing between provisions of Order XXVI and Order XXXIX also indicate to the same aspect.

In view of the above discussion, the writ petition filed by the petitioners is allowed. The order dated 30.07.2011 passed by the trial court is set aside. No order as to costs.