Court must record its reasons about its dissatisfaction over the report of Commissioner, Before going to appoint a Commissioner Second time

ANDHRA PRADESH HIGH COURT

Before :- D.S.R. Varma, J.

CRP No. 4358 of 2003. D/d. 27.7.2004.

R. Vijayudu - Petitioner Versus N. Ramachandra Reddy - Respondent

For the Petitioner :- Mr. B. Narasimha Sharma, Advocate.

ORDER

D.S.R. Varma, J. - Despite service of notice, none appears for the respondents.
2. However, since the legal position is settled, I deem it fit to dispose of the present civil revision petition at the admission stage itself.
3. Heard the learned Counsel for the petitioner.
4. This civil revision petition is directed against the order, dated 5.8.2002, in I.A. No. 1272 of 2002 in O.S. No. 1307 of 1999 on the file of Principal Junior Civil Judge, Kurnool.
5. The petitioner is the defendant and the respondent is the plaintiff. The suit is filed for permanent injunction.
6. For the sake of convenience, the parties will be referred to as arrayed in the suit.
7. The plaintiff undisputedly filed I.A. No. 1861 of 2000 seeking appointment of a Commissioner, the purpose of which is not very relevant. The Commissioner submitted his report in the month of April, 2001. Subsequently, both the parties adduced evidence, both oral and documentary. The matter was being posted for arguments since July, 2002. At that stage, the present I.A. No. 1272 of 2002 had been filed by the plaintiff seeking redirection to the Advocate-Commissioner and surveyor appointed in I.A. No. 1861 of 2000 to inspect the suit site and to file fresh report or to scrap the report filed by them, and appointment of a fresh Commissioner for the same purpose. The said I.A. No. 1272 of 2002 was allowed on the ground that there were certain discrepancies in the Commissioner's report and accordingly, the Trial Court redirected the earlier Commissioner and the surveyor who were appointed in I.A. No. 1861 of 2000, to re-inspect the suit site and to file a fresh report. Hence, the present revision.
8. On a perusal of the findings in the impugned order, it is clear that the Trial Court allowed the said I.A. by relying on M. Chenna Venkata Reddy and others v. A.P. Housing Board, Gruhakalpa, 1999 (2) LS 359, wherein it was observed that :

"Until Court is dissatisfied with proceedings and report of Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less scrapping of earlier report as a whole and appoint a fresh commission. No finding by the Court below about satisfactory procedure adopted by the Commissioner in filing report and also about correctness of report-Allowing application by Trial Court in appointing second Commissioner - Not justified."

9. At the outset I am of the considered view that the Court below was in serious error in allowing the present I.A. and it has not strictly followed the observations of this Court in the citation referred to supra.
10. Order 26, Rule 10 of the Code of Civil Procedure is the relevant provision; which deals with the appointment of Commissioner, and it reads as follows :-

Order 26, Rule 10(1) The Commissioner, after such local inspection as he deems the 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.

Report and depositions to be evidence in suit-(2) : 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 his made the investigation; Commissioner may be examined in person - (3) 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.

11. From the above provision, it is clear that the report of the Commissioner shall be a piece of evidence in the suit and the same shall form part of the record. But, the Court, however, either on its own or at the instance of either of the party, may examine the Commissioner in open Court touching any of the matters referred to him or mentioned in the report or as to the manner in which the Commissioner made the investigation.
12. It is further open for the Court that if for any reason the Court is not satisfied with the proceedings of the Commissioner, it may direct further inquiry as it thinks fit. In such course of action, the Court may go to the extent of appointing a second Commissioner.
13. In this regard, as already pointed out, the decision relied op by the Court below, in fact, does not help the plaintiff or should not have been relied on for the purpose of allowing the present I.A. filed by the plaintiff seeking appointment of a fresh Commissioner.
14. In Kushal Rao v. Shyam Rao, 1997 (1) ALT 93 : 1997(1) Indian Civil Cases (A.P.) 434, this Court observed as under :-

"There is no provision under Order 26 of the Code for appointing more than one Commissioner or to reject the report of the Commissioner and the evidence without any justification.

As a normal rule, two separate commissions should not be issued to deal with one and the same subject and to treat the report of both the Commissioners as evidence in the case.

It is only when the report of the First Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a Second Commissioner could be appointed under the provisions of Order 26, Rule 10 sub-clause (sic. sub-rule)(3). If a second Commissioner is appointed either by rejecting the report of the first Commissioner or without that, the legal effect is that the report of the first Commissioner may be wiped out in law. But, in view of the implications of Order 26, Rule 10 sub-clause (sic. sub-rule)(2) of the Code, such a report and the evidence recorded by the Commissioner would be evidence in that case, which has to be taken into consideration while deciding the matter in issue by the Court and, therefore, as a routine, if a second Commissioner is appointed, it has got serious consequences wrought (sic. fraught) with danger to the ultimate justice. Thus such a procedure of appointing second Commissioner or more than one Commissioner for the same purpose is said to be improper and illegal."

15. From a plain reading of sub-rules (2) and (3) of Rule 10 of Order 26 CPC read with the decisions referred to supra, the legal position is very much clear that an Advocate-Commissioner can be appointed by the Court for a particular purpose and his report shall form part of the record and the Commissioner may be examined in open Court either by the Court or at the instance of either of the parties.
16. However, for the sake of convenience and in the interests of justice, the Court may appoint a second Commissioner for the same purpose. But, such an appointment of Commissioner for the second time can be made only when the Court is not satisfied with the report of the earlier Commissioner, as contemplated under sub-rule (3) of Rule 10, of Order 26 CPC.
17. In the instant case, admittedly, the plaintiff at the earliest point of time made an application for appointment of a Commissioner and it was allowed by the Court below and the Commissioner had also filed his report. Interestingly, no objections have been filed by either party and the same had remained as part of the record.
18. Another important aspect to be noted is that neither of the parties requested the Court below to examine the Commissioner by raising objections on his report nor the Court below recorded any reason to arrive at a conclusion that the report of the said Commissioner was not satisfactory upon the examination of the Commissioner on its own.
19. The only ground for the plaintiff to file the present I.A. was that there were some discrepancies in the report of the Advocate-Commissioner. Those discrepancies were also not very much clear.
20. Furthermore, when there were discrepancies, those discrepancies could and should have been noticed and brought on record by way of filing objections and request the Court to appoint a fresh Commissioner for the same purpose, to have clarity on the issue and in the interests of justice. Nothing of that sort had happened in the present case.
21. It is to be remembered that before going to appoint a Commissioner second time, the Court must record its reasons about its dissatisfaction over the proceedings of the Commissioner or the report of the Commissioner is not satisfactory, either at its instance or at the instance of either of the parties.
22. No reasons for dissatisfaction have been recorded by the Court below, which in my view is very much imperative while appointing a second Commissioner. The Court below was in serious error in simply relying on the averments made in the affidavit, filed in support of the application, that there were discrepancies and such discrepancies have got to be clarified by the second Commissioner.
23. The mere averments made by the plaintiff in the affidavit, filed in support of the application, are not sufficient but, it is only the dissatisfaction of the Court recorded for the purpose of appointment of a second Commissioner. No such finding had been arrived at or recorded by the Court below in allowing the present application.
24. Hence, having regard to the above facts and circumstances, the legal position and following the judgment M. Chenna Venkata Reddy and others v. A.P. Housing Board, Gruhakalpa (supra) rendered by this Court, the civil revision petition is to be allowed and the impugned order is liable to be set aside.
25. In the result, the civil revision petition is allowed, at the admission stage, and the impugned order, dated 5.8.2002, in IA No. 1272 of 2002 in OS No. 1307 of 1999, passed by the Court below is set aside. However, there shall be no order as to costs.

Revision allowed.