MANGAL MISIR Vs. RAMLAGAN MISIR

JUDGEMENT

(1.) This case illustrates in a remarkable degree the extent to which the salutary provisions as to the appointment of commissioners contained in Section 75 and Order 26, Rule 9, Civil P.C., in consequence of the disregard of the provisions of Clause (3), Rule 10, Order 26, are liable to be abused with ruinous result to the litigants. Once a Commissioner has been appointed and has submitted his, report, the Court has no right, unless it comes to the conclusion that the Commissioner has so misconceived his fundamental duties as to render his report useless, to appoint another Commissioner. There is no warrant in law for the appointment of a succession of Commissioners unless the Court for reasons to be recorded by it, is of the opinion that the report of the Commissioner appointed by it, and objected to by one party or the other, is wholly valueless, and further elucidation of the matter in dispute between the parties is necessary by the appointment of a more competent Commissioner. If objections to the report of a Commissioner appointed by the Court are taken by one party or the other, the Court, must, before giving a go-by to that report, hear and decide the objections in open Court, and unless it comes to the conclusion, for reasons to be recorded by it, that the report is wrong and worthless as a piece of evidence in the case, it is not permissible to appoint another Commissioner. The contrary practice, as pointed out by the Madras High Court in the case of Thottamma V/s. Subramaniyyan A.I.R. 1922 Mad 219 encourages a haphazard and careless selection of Commissioners. It subjects parties to unnecessary and avoidable expense, and encumbers the record with useless papers.

(2.) Such a practice has also been severely condeemed by a learned Judge of this Court in the case of Nand Kishore V/s. Ganesh Prasad . Another learned Judge of this Court while admitting the present appeal and issuing notice to the respondents made the following observation: The habit, which is so prevalent in the lower Courts of appointing a succession of Commissioners, constitutes a public scandal, and I entirely agree with what the lower appellate Court has said on the point. If I allow notice to go, it is principally with a view to know the procedure adopted by the trial Court, and unless that procedure can be justified by something appearing further, it is condemnable by this Court.

(3.) The dispute in the suit giving rise to the. present appeal was with respect to two bamboo clumps and the value of the subject matter of the suit was Rs, 105. The plaintiffs case was that the clumps were owned and possessed by them and were on their plot No. 105, whereas the contesting defendants alleged that the clumps were planted by their ancestors and were on the adjoining plot No. 104 which belonged to them. The trial Court, with a view to find out the situation of the two clumps, appointed an Amin to make the necessary measurements and submit his report on the point. The Amin executed the commission issued to him. He reported that both the clumps were on the boundary line of the two plots mentioned above. The defendants then filed an application on the 23 April 1928. (The application is paper No. 176-C upon the record). In the application all that was stated was that the Amin, to whom commission was issued by the Court, was not the Amin for the circle in which the bamboo clumps in dispute were situate, and that his report was manifestly wrong and, therefore some Vakil should be appointed a Commissioner. No reasons, good, bad or indifferent, in support of the assertion that the Amin's report was wrong, were embodied in the application and the Court passed the following order on the said application: Allowed. Issue commission to B. Kesho Roy. Applicant to pay Rs. 15 as his fee and arrange for his conveyance. Commissioner should submit his report before the 1 May 1928.