Apr - High Court of Judicature at Allahabad

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414 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 persons to whom such commission shall be issued, the Court shall be bound by such rules." Order 26, Rule 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 its it shall think fit." Order 26, Rule 18 deals with the appearance of the Counsel before the Commissioner and it reads as under:- " Order 26 Rule 18 Parties to appear before Commissioner :-- "(1) Where a commission is issued under this Order, the Court shall direct that the parties to the 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." 8. In the case of Latchan v. Rama Krishna, AIR 1934 Mad 548, the Apex Court had to consider the validity of a commission report prepared in violation of Order 26, Rule 18, C.P.C. The facts were that an order for the issue of a commission was passed without notice to the defendant and no notice was also given to the defendant to be present at the time of inspection by the Commissioner of the property. Hon'ble Cornish, J. observed thus: "It must be remembered that Rule 10(2), Order 26, Civil P.C., makes the report of the Commissioner evidence in the suit. Therefore it is of importance that the report should not be founded on representations made to the Commissioner, or on matters brought to his notice by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that think this alone would be sufficient to justify the interference of a Revision court. But there is Rule 18, Order 26 which says that when a commission is issued under this order the court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Subrule (2) of Rule 18 says that where all or any of the parties do not so appear, the
1 All] Ram Ujagar and another V. Smt. Kailasha and others 415 Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. 9. The legal validity of a Commissioner's report when there was no notice issued to the defendant before passing the order appointing the Commissioner or before the Commissioner visited the property for investigation was considered in V. P. Veerabhadran Pillai v. A. P. Bhagavathi Pillai, 1954 Ker I.T. 324 and it was observed:- "It is improper to get commissioner reports behind the back of one of the parties to a litigation. A decision based on such a report is unsustainable " 10. The object of local investigation under Order 26, Rule 9, C.P.C. as stated in Amulya Kumar v. Annada Charan, AIR 1933 Cal 475 is not so much to collect evidence which can be taken in court but to obtain evidence with regards to its very peculiar nature can only be had at the spot. Order 26, Rule 9 C.P.C. invests the court with a discretion in passing an order for the issue of a commission and does not provide for the presence of both parties when an order for the issue of commission is passed. There may be cases where the object of the issue of commission itself will be lost by ordering notice to the defendant before passing the order for the issue of commission. In emergent cases it is necessary for the court to pass an order issuing commission without ordering notice. An order for the issue of a commission for local investigation without issue of notice under Order 26, Rule 9, cannot be characterised as without jurisdiction. 11. The only possible view which can be interfered is also clear from the wording of Order 20, Rule 18, C.P.C. which insists on notice to the parties to appear in person or by their agents or pleader in the property at the time of inspection. Notice to the parties is made compulsory only before the investigation is done by the Commissioner. It is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance. 12. Order 26, Rule 10 Sub-rule (2) states that the report and the evidence taken by the Commissioner shall be evidence in the suit. The principle behind Order 26, Rule 18 is obvious Order 26, Rule 10(1) authorises the Commissioner to take evidence regarding those matters which he is competent to investigate and reduce the same in writing and file the same along with his report. It is a principle of natural justice that it is only evidence taken in the presence of a party that could be used against him. It is for this reason that Order 26. Rule 18 contemplates an opportunity to be given to the parties to be present before, the Commissioner in the property at the time of investigation. Thus, the inevitable conclusion is that the court cannot take an absolute and final view till the evidence is finally concluded and the court applies its mind on the report of the Commissioner. To put it differently, the report of the Commissioner is only one of the pieces of evidence amongst other evidence to led by the parties for evidence.
Page 1 and 2: 1 All] Siya Ram V. District Judge (
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Apr - High Court of Judicature at Allahabad

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