Sardar Singh vs Chandan and others

M.R. Sharma, J.—This revision petition is directed against the order dated 28th November, 1981 passed by the learned Subordinate Judge IInd Class, Gurgaon, whereby he accepted the objections preferred by the respondents against the report of a Local Commissioner and set aside the report. After the Local Commissioner had been appointed, the Commissioner sent notices to the parties concerned to appear on the spot on the date fixed in the notices so that he could execute the Commission. One of the respondents refused to accept notice. The Commissioner, however, went to the spot and in accordance with the directions issued by the learned trial Court made measurements and submitted his report. The respondents filed objections against this report on the point that under rule 18 of Order XXVI, Civil Procedure Code, it was for the Court to issue notices to the parties to appear before the Commissioner and that the Commissioner had not fixed any pucca points for making the measurements. On the second point, serious controversy has been raised by the Learned Counsel for the parties but I do not wish to pronounce on this point at this stage.

It is argued at the Bar that there is some conflict of opinion about the interpretation of rule 18, Order XXVI CPC which has caused some confusion and the matter deserves to be clarified by this Court. In Maroli Achuthan Vs. Kunhipathumma, , a Division Bench of that Court had an occasion to consider this provision. It was held that rule 18 of Order XXVI, CPC required was that the parties be given an opportunity of being present before the Commissioner before he makes observations on the spot to make a report to the Court and that where the Commissioner, instead of the Court, himself had issued summonses to the parties concerned, the report of the Commissioner should not be set aside on that score. Similar view was taken in Suraj Pal and Others Vs. Smt. Meera alias Merhia and Others, . On the other hand, in Pedda Seetharamappa and Others Vs. Pedda Appaiah, a contrary view was taken. Therein it was held that under this provision it is for the Court alone to issue notices to the parties for appearing before the Commissioner. Rule 18 Order XXVI of the Code of Civil Procedure, reads as under :--

Parties to appear before Commissioner :

(1) Where a Commission is issued under this order, the Court shall direct that the parties to suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

A plain look at this provision is sufficient to indicate that it relates to the time at which a Court passes order regarding the appointment of a Local Commissioner. While appointing the Commissioner, the Court is under an obligation to direct the parties to the suit to appear before him either in person or through their agents or pleaders. In a given case it may so happen that the date which has been fixed for appearance before the Commissioner appointed by the Court, because of some unforeseen reasons the Commissioner may not be able to take up the case. In that event, he can communicate to the parties concerned the date on which they are to appear before him. If it were to be held that in such an eventuality the Commissioner should approach the Court for issuing summonses to the parties, that would mean further delay in the execution of the Commission. An interpretation which makes the procedure more lengthy has to be avoided at all costs. Even otherwise, the CPC is exhaustive on matters which have been specifically dealt with therein. On matters where no specific provision is available it is open to the Court to devise its own procedure. A Commissioner appointed under this provision acts under the authority of the Court and subject to the overall control of the Court which has appointed him. He too could devise his own procedure for effectively carrying out the orders of the Court. The policy of the law is that the disputes between the parties should be decided in accordance with the principles of natural justice, which inturn implies that no party should be condemned before being heard. How a party is to be informed, is not of great consequence. What is important is that a party should be informed about the date and the time on which a suit is to be taken up. Consequently it matters little whether this information is given by the Court itself or by a person who is appointed by it as a Commissioner to assist it for the just decision of the case. I am, therefore, of the view, that neither on the proper interpretation of this provision nor on principle can it be regarded as proper that where notices are issued to the parties by the Commissioner, the report submitted by him should be regarded as nonest. I am in respectful agreement with the view taken by the Kerala and Allahabad High Courts noticed above. With utmost respect, the view taken by the Andhra Pradesh High Court does not commend itself to me.

Since the principal ground on which the learned trial Court declined to accept the report of the Commissioner does not appear to be tenable in law, it is open to the petitioner to contend that I should set aside its order in exercise of revisional jurisdiction, but a perusal of the order shows that the new Commissioner has been selected at the request of the parties. In this situation, the petitioner can only make a grievance that he is being burdened with unnecessary expenses. To redress this grievance, I order that the respondents should pay a sum of Rs. 300/- to the petitioner as costs and the commission should be executed by Naib Tehsildar (Loans), Gurgaon, as ordered by the learned trial Court, at the costs of the respondents. It is further clarified that if the person incumbent of this office is transferred, it shall be open to his successor in office to execute the Commission without any fresh orders on this point. The petition stands disposed of accordingly.

The parties through their Learned Counsel are directed to appear before the learned trial Court on 15th March, 1982.