# Ram Ujagar and another v. Smt.Kailasha and others

- **Citation:** (2011) 1 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-26
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ujagar-and-another-v-smt-kailasha-and-others-41857
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order XXVI
Rule-12-application
to
appoint
commissioner-rejected by Trail Courtupheld by revisional court-ignoring this
fact commissioner report a simple
piece of evidence-aggrieved party has
right to lead evidence in rebuttal or
controvert the report.

Held: Para 14

The report of the Commissioner may be
relied
on
after
examining
the
Commissioner not as report forming
the
basis
of
an
investigation
contemplated by Order 26, Rule 9, but
as
corroborating
the
evidence
of
inspection
conducted
by
the
Commissioner The view by the lower
court therefore that the report can be
treated as evidence in the suit under
Order 26, Rule 10, Sub-rule (2), C.P.C.
is palpably incorrect.
Case law discussed:
[2006 (100) RD 484]; [AIR 1997 Calcutta
59]; AIR 1934 Mad 548; 1954 Ker I.T. 324;
AIR 1933 Cal 475

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Gonda has already been executed and
pursuant to that the petitioner was
enjoying the same there is no occasion
to go back for this Court, therefore, I
hereby review the order dated 13.1.2011
passed in Writ Petition No. 221(M/S) of
2011 and dismiss the petition based on
concealment of the facts as well as also
being infructuous.

Review petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2011

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Misc. Single No. - 108 of 2007

Ram Ujagar and another
 ...Petitioner
Versus
Smt.Kailasha and others ...Respondent

Counsel for the Petitioner:
Sri Mohd. Saeed Ii,
Sri Mohammad Saeed-Ii

Counsel for the Respondent:
C.S.C.
Sri Y.M.Singh

Code of Civil Procedure-Order XXVI
Rule-12-application
to
appoint
commissioner-rejected by Trail Courtupheld by revisional court-ignoring this
fact commissioner report a simple
piece of evidence-aggrieved party has
right to lead evidence in rebuttal or
controvert the report.

Held: Para 14

The report of the Commissioner may be
relied
on
after
examining
the
Commissioner not as report forming
the
basis
of
an
investigation
contemplated by Order 26, Rule 9, but
as
corroborating
the
evidence
of
inspection
conducted
by
the
Commissioner The view by the lower
court therefore that the report can be
treated as evidence in the suit under
Order 26, Rule 10, Sub-rule (2), C.P.C.
is palpably incorrect.
Case law discussed:
[2006 (100) RD 484]; [AIR 1997 Calcutta
59]; AIR 1934 Mad 548; 1954 Ker I.T. 324;
AIR 1933 Cal 475

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard learned counsel for the
parties.

2. By means of instant writ
petition, the petitioners have assailed
the order dated 20.9.2006 passed by the
District Judge, Unnao in Civil Revision
No. 139 of 2006 and the order dated
30.8.2006 passed by the Civil Judge
(Junior Division), North, Unnao in
Regular Suit No. 225 of 1992, as
contained in Annexure Nos. 1 and 2,
respectively, to the writ petition.

3. Undisputed facts are that husband
of opposite party No.1, namely, Raja Ram
and father of the opposite parties Nos. 2, 3
and 4 had filed a suit for permanent
injunction , which was registered as
Regular
Suit
No.
225
of
1992.
Petitioner/Defendants contested the suit
by filing written statement. During the
pendency of the suit, an application for
issuance of Commission was moved by
the private/opposite parties, in which, a
Survey Commissioner was appointed by
the Trial Court for making inspection.
After
inspection,
the
Survey
Commissioner submitted a report, to
which objections were filed by the
petitioners.
The
Trial
Court,
after
rejecting the objections, confirmed the
1 All] Ram Ujagar and another V. Smt. Kailasha and others
413
Survey Commissioner's report vide order
dated 29.9.1999.

4. In order to rebut the averments of
the report, the petitioners/defendants filed
an application under Order XXVI,Rule 12
C.P.C. to appoint a Commissioner, which
was rejected by the Trial Court vide order
dated 30.08.2006, against which, a
revision was preferred and that too was
dismissed by the order dated 20.9.2006.

Feeling aggrieved, petitioners have
filed the instant writ petition inter alia on
the grounds that while passing the
impugned orders, the Courts below lost
sight of the fact that a Commissioner
Report was simply a piece of evidence
and the aggrieved party, against whom,
the report was going, had a legal right to
adduce evidence in rebuttal to contradict
the Commissioner's report.

5. Learned counsel for the petitioner
submits that Order XXVI Rule 9 of the
Civil Procedure Code provides for the
appointment of Commissioner for local
investigation; Rule 11 for examination of
accounts; Rule 13 for making partition;
and Sub-Rule 3 of Rule 14 provides for
confirmation of report or for setting aside
the report of a Commissioner but there is
no such provision when the Court
appoints Commissioner for making local
investigation. Sub-rule 2 of Rule 10 of the
Civil Procedure Code treats the report of a
Commissioner only as a piece of
evidence. The parties have a right to
cross-examine the Commissioner in open
Court touching any of the matters referred
to or mentioned in the report. The parties
may
also
adduce
evidence
either
supporting the report of Commissioner or
show that the report of the Commissioner
is erroneous. In fact, the Court cannot
take final view regarding the report of a
Commissioner till the evidence is finally
concluded and Court applies its mind on
the report of the Commissioner. But in the
instant case, the petitioners have not been
provided ample opportunities by both the
Courts below to adduce their evidence
against the Commissioner's report.

6. To substantiate their arguments,
learned Counsel for the petitioners has
relied upon the judgment of this Court
rendered in the case of Bulaki Lal and
others Versus Mewa Lal and another
[2006 (100) RD 484] and the Supreme
Court's report in Amena Bibi and others
versus Sk. Abdul Haque [AIR 1997
Calcutta 59].The contention raised by the
learned counsel for the petitioners was
that the report of the Commissioner is
inadmissible in evidence and cannot be
acted upon in view of Order 26.

7. Order 26, Rules 9, 10 and 18 of
the Code of Civil Procedure which are
relevant in the present controversy are
being reproduced hereinafter:

"Order 26, Rule 9: Commissions to
make local investigations:--

"In any suit in which the Court
deems a local investigation to be requisite
or proper for the purpose of elucidating
any matter in dispute, or of ascertaining
the market-value of any property, or the
amount of any mesne profits or damages
or annual net profits, the Court may issue
a commission to such person as it thinks
fit
directing
him
to
make
such
investigation and to report thereon to the
Court:

Provided that, where the State
Government has made rules as to the
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.
416 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

13. It may be added that from the
provisions and citations referred to above,
it is manifest that the party objecting to
Commissioner's report can lead best
possible evidence at the time of hearing to
countermand the report even if the same
was accepted earlier.

14. The report of the Commissioner
may be relied on after examining the
Commissioner not as report forming the
basis of an investigation contemplated by
Order 26, Rule 9, but as corroborating the
evidence of inspection conducted by the
Commissioner The view by the lower
court therefore that the report can be
treated as evidence in the suit under Order
26, Rule 10, Sub-rule (2), C.P.C. is
palpably incorrect.

15. For the reasons aforesaid, I setaside the impugned orders and allow the
petition. However, it is provided that it
will be open for both the parties to
substantiate the respective contentions
regarding the tenability or untenability of
the
Commissioner's
report
and
its
conclusions.

16. As the Regular Suit No.225 of
1992 is pending since 1992, as such, the
trial Court shall make earnest endeavour
in deciding the suit, after affording
opportunity of hearing to the parties and
in accordance with law, expeditiously,
say, within a period of two years from the
date of receipt of a certified copy of this
order.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 862 of 1994

Dina Nath Chaube

 ...Petitioner
Versus
Central Bank of India and others

 ...Respondent

Counsel for the Petitioner:
Sri A.Mannan
Sri S.C.Mishra
Sri S.K. Singh
Sri Sharad Kumar Chaudhary
Sri Sharad Kumar Srivastava

Counsel for the Respondent:
Sri Vinay Shankar
C.S.C.

Constitution of India, Article 311(2)-
Dismissal order-without supplying copy
of preliminary inquiry without giving
opportunity to produce all the witnessesnon supply of material document-heldvitiate entire disciplinary proceedingseven appellant authority not considered
this aspect-held-order not sustainable.

Held: Para 14 & 15

In
view
of
above,
so
far
as
the
submission of learned counsel for the
petitioner that the Disciplinary Authority
has not exercised its jurisdiction as an
independent
adjudicator
and
not
considered the objections filed by the
petitioner and also not discussed the
evidence available on record except
reproducing the observation made by the
Enquiry Officer, mechanically, seems to
be correct. The Disciplinary Authority
should have passed a speaking and
reasoned order after considering the
evidence led by the parties. It was