R. Narasimhaiah vs Smt. Sakammanamma and Another

Both the revision petitions are filed against the order rejecting the appointment of a Commissioner in O.S. No. 186 of 1995 and OS: No. 30 of 1996 both on the file of the Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Chamarajanagar. The reason for rejecting of such appointment was that the evidence has not commenced and therefore before evidence is adduced the Commissioner cannot be appointed.

Mr. M. Sivappa appearing for the petitioner submitted that the Commissioner appointed is to find out the exact possession of the property as on date and not for the purpose of procuring evidence or for deciding the dispute between the parties. On the other hand, Mr. Shankar appearing for the respondent submitted, relying upon the dictum in Brij Lal v Ram Pratap, AIR 1982 Del. 149, that the Court cannot delegate its own powers to decide any dispute between the parties. The learned Counsel also relied upon a decision in AIR 1979 Cal. 296 (sic) to the effect that no commission can be issued for the purpose of collecting evidence. Finally, he relied upon the decision of the Delhi High Court in Brij Lal''s case, wherein the Delhi High Court held that "the Commissioner cannot decide the dispute between the parties".

The learned Counsel for the petitioner relied upon the dictum in K. Raghunath Rao v Smt. Tumula Jailaxmi, AIR 1988 Ori. 30, which is to the following effect:

In Debendranath Nandi v Natha Bhuiyan, (1973)39 Cut. L.T. 180, it is observed thus:

"......The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The Trial Court''s decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view, of the evidence on record, a Commissioner''s repot of local investigation was absolutely necessary in this case.......". The aforesaid passage makes it clear that local investigation by a Commissioner can be made in exercise of the power under Order 26, Rule 9 of the CPC, where visit to. the spot is necessary. That would be a local investigation requisite or proper. When the report would be necessary to appreciate the evidence on record, a Commission can be issued in proper case. Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures from the normal rule for issue a Commission also. For illustration. Where evidence is necessary to know the depth of water in a particular season a Commissioner can be deputed even though evidence has not been recorded. Where it is to be found as to on which plot the disputed land lies, a writ can be issued to any person to relay the same even though no evidence is required if the Court finds that the parties themselves cannot produce evidence to that effect. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. This much can be said that the basic pre-requisite for issue of such a writ is the satisfaction of the Court that a local investigation is requisite or proper. This satisfaction is to be judicial satisfaction based on reason.

Heard the respective Counsel.

The only ground on which the application was dismissed by the Court below that the plaintiff cannot appoint the Commissioner before adducing the evidence on his side and the report of the Commissioner is only to appreciate the evidence on record and not to collect the evidence on his behalf. This view of the Court below is wrong. The purpose of the Commissioner is to find out the actual possession of the property which is in dispute and only after the Commissioner''s report is filed, the parties will be able to explain away any particulars in the Commissioner''s report and even if there is a doubt in the possession of the property such doubt can be repelled by proper evidence which has'' to be adduced by the parties.

In this view, both the revision petitions are allowed and the Court is directed to appoint a Commissioner as prayed for. Both the parties are directed to give memo of instructions to the Commissioner and the Commissioner shall follow the memo of instructions and give a detailed report along with the sketch of the property to enable the Court to consider the same at the time of the final disposal of the case.

The revision petitions are disposed of.