Sanjeev Singh vs Brij Mohan Aneja and Others

V.S. Aggarwal, J.—The present revision petition has been filed by Sanjeev Singh, hereinafter described as the "the petitioner", directed against the order passed by the Rent Controller, Amritsar, dated 21.8.1997. By virtue of the impugned order, the learned trial court dismissed the application seeking permission to lead evidence by producing the proceedings of the Local Commissioner and the report of the Local Commissioner.

The relevant facts are that the petitioner had filed a petition for eviction for ejectment of the respondent on the ground that the property in question had become unsafe and unfit for human habitation. The petitioner had filed another application for the same building against another tenant on the same ground. Therein an order of eviction was passed against a third, person. When that matter came up before this Court, a Local Commissioner was appointed to visit the spot and report whether the entire building was unfit and unsafe for human habitation. The Local Commissioner had visited the spot and reported that the entire building has become unfit and unsafe for human habitation. On the basis of the said report; the revision petition filed in other eviction petition was dismissed. Prompted by that, the petitioner filed an application to produce judgment of this Court in revision petition dated 3.2.1997, proceedings of the Local Commissioner and his report. The said application was contested. The trial Court dismissed the application on the ground that the respondent was not a party to the proceedings. He was not served with a notice by the Local Commissioner and, therefore, the report of the Local Commissioner is not relevant. Accordingly, the application was dismissed. Aggrieved by the same, present revision petition has been filed.

Under Order 26 Rule 9 of the CPC when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, it can issue a commission to make such investigation and report. As observed by the Supreme Court of India in the case of Filmistan Private Ltd., Bombay Vs. Bhagwandas Santprakash and Another, the power of the Court to issue a commission is discretionary. The Court is not bound to issue a commission whenever such a request is made. Whenever such a discretion is exercised, this Court would be slow to interfere in revision petition, it could only interfere if the discretion is totally arbitrary and patently erroneous.

Learned counsel for the petitioner highlighted the fact that in the eviction petition filed against another tenant in the same building, Local Commissioner had been appointed and it was reported that entire building has become unfit and unsafe for human habitation and, therefore, the learned trial court should have permitted the report of the Local Commissioner and the proceedings to be produced. In the present case, same was not permitted by the trial Court. Only a copy of the judgment of this Court was permitted to be tendered in evidence. In the facts of the case, the discretion so exercised cannot be termed to be arbitrary or improper. Order 26 Rule 10(2) of the- CPC reads as under:-

"10(2) Report and deposition to be evidence in suit - Commissioner maybe examined in person - 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 matter in which he has made the investigation."

A bare reading of the provision quoted above shows that the report of Local Commissioner, is evidence in the suit. It necessarily imply that it can be taken note of in the said suit and only from record in that suit. Thus, mere production of the report and the proceedings will not serve the purpose. In addition to that, notice, if any, before the report of the Local Commissioner in the other proceedings must have been issued to the tenant in that proceedings and the petitioner. No notice necessarily would have been served to the respondent as such, in these circumstances, the learned trial court rightly held that production of report of the Local Commissioner and the proceedings will not serve the purpose. The same were disallowed. There is a ground to interfere. Thus, it is for the added reason that petitioner, admittedly, has already examined the photographer and his architect to show the condition of the property in question. Once the evidence has already been produced, it is for the trial court to appraise, consider and evaluate the same.

As a result thereto, the revision petition being without merit must fail and is dismissed.