Silchar Municipal Board v. E astern Tea Estate Pvt. Ltd.). In paragraph
Case Details
WP(C) 6126/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. N. Choudhury, learned counsel for the petitioners who are the defendan ts in Title Suit No. 84/2002 pending in the Court of the learned Civil Judge (Se nior Division), Nagaon. Also heard Mr. A.K. Sarkar, learned counsel representing the respondents No. 1 to 4, who are the plaintiff in the said suit. The suit is for declaration of right, title and interest over the suit land and for ejectme
Legal Reasoning
nt of the defendants i.e. the petitioners in this writ petition. On the basis of the prayer made by the defendants, a commissioner was appointed for survey etc. in terms of the directions contained in Annexure-3. Pursuant the reto the Commissioner carried out the survey etc. and submitted its report. The report having been accepted by Annexure-6 order dated 15.7.2005 passed by the le arned Civil Judge (Senior Division), Nagaon, the defendants/petitioners are aggr ieved by the same. Hence this writ petition. For a ready reference, the order da ted 15.7.2005 is quoted below: (cid:28)15.7.05. Parties are represented and perused the plaint Writ and report along w ith the evidence of Commissioner. Also seen the objection of defendant No. 9. Af ter hearing both the parties and on perusal of the report of Commissioner, I fin d no such vital ground to reject the report of Commissioner. Hence the report of Commissioner is accepted. Fixing 22.9.05 for cross of plaintiff’s witnesses. (cid:29) Mr. Choudhury, learned counsel for the petitioner submits that the learned Court below while accepting the report of the Commissioner ought to have provided tha t the same will have to be considered along with other evidences and that the sa id report cannot be conclusive by itself. Mr. Sarkar, learned counsel representi ng the plaintiffs/respondents submits that the Commissioner was appointed as per the desire of the defendants/petitioners and he carried out the entrusted work as per the order of the learned Court below and there is nothing wrong in his re port. Mr. Choudhury, learned counsel for the petitioners has placed reliance on the de cision of this Court reported in (1993) 2 GLR 445 (Silchar Municipal Board Vs. E astern Tea Estate Pvt. Ltd.). In paragraph-8 of the said judgment, it was held t hat at a preliminary stage the court has not required to apply its mind on the a cceptance or otherwise of the Commissioner’s report. As per the said judgment, l aw does not oblige the court to pass a formal order accepting the report at a pr eliminary or intermediatory stage. It was also held that it is open for the part y to point out defects, irregularities and shortcomings in the work done by the Commissioner. In paragraph-8 of the said judgment, it has been held thus: (cid:28)8. The question which however arises for consideration is whether at the prelim inary stage the Court has to apply its mind on the acceptance of the report and to pass an order. Commissioner’s report of course does not conclude the matter i n issue. It is only one piece of evidence which ultimately has to be considered along with other evidence in the case before the Court can come to a conclusion over the disputed issue. It is for the court ultimately to rely or refrain from relying upon Commissioner’s report for the purpose of granting a decree of the p laintiff to dismiss the suit. But the law does not oblige the court to pass a fo rmal order accepting the report at a preliminary or intermediatory stage, as don e in the case. Such an order of acceptance passed in the light of failure of the parties to file objection or on consideration of objections filed by the partie s is not contemplated in the scheme of Rule 10 Order 26 CPC. It is open to a par t to point out defects, irregularities and shortcomings in the work done by the Commissioner, the procedure adopted by the Commissioner, the observations made b y him and the inference, it any drawn by him and request the court to direct the Commissioner to make a further enquiry. If the mistakes and errors in the repor t are mistakes or errors so fundamental as to take away the value of the report, if the report is vitiated by bias, it may be open to the parties to request the court to appoint a fresh commission is to be appointed, but in no case is the c ourt called upon to pass a formal order ’accepting the report’ or directing the ’report to be part of the record’. Every report is part of the record by virtue of the mandate of Rule 10. A report does not become a part of the record by orde r of the court it becomes part of the record by virtue of the provision of Rule 10. Even where the court is not satisfied that a further report is called for or that a fresh Commission should be appointed, it is still open to the court not to rely on the report at the conclusion of the trial having reference to the tot ality of the evidence adduced before it in the trial. It is wholly inappropriate for the court at the preliminary stage to reject objections as without merit. T his is because the court may be persuaded to take a different view after evidenc e is adduced at the trial of the suit. The court is not precluded from consideri ng the report and the objections in the light of evidence adduced at the trial. At the preliminary stage what the court is called upon to consider whether a fre sh enquiry is called for and not to consider whether the objections are to be ac cepted or rejected or whether report is to be accepted or rejected. Before decid ing whether further enquiry is to be ordered, court should give an opportunity t o the parties to examine the Commissioner. (cid:29)
Decision
In view of the above, the writ petition is disposed of providing that irrespecti ve of the impugned order dated 15.7.2005 it would be open for the defendants/pet itioners to point out defects, irregularities and shortcomings, if any in the wo rk done by the Commissioner. It is further provided that the said report of the Commissioner will have to be considered along with other evidence on record. Writ petition is disposed of. Registry shall transmit the case records, if has b een received from the Court below immediately along with a copy of this order. I t is expected that the learned trial Court will dispose of the matter as expedit iously as possible.