R. C. Deo Sharma, J. - (1.) THIS is a plaintiff's appeal against the judgment and decree dated 8th July, 1977 passed by the learned District Judge, Hardoi whereby he dismissed the plaintiff's appeal and thereby confirmed the judgment and decree of the trial court which had dismissed the plaintiff's suit. It will appear that the plaintiff claimed to be owner and in possession of a house situate in the town of Kachhauna and which was shown in the site plan annexed to the plaint by letters LRSV. To the north of the house lay the house of defendant Sabir Mian and which was shown in the site plan by letters SVRD. In between these two houses there was a wall shown by letters YR and another wall shown by letters DA. The plaintiff's contention was that the defendant had damaged the plaintiff's northern wall and had started making constructions by extending his southern wall towards further south. He accordingly prayed for a perpetual injunction restraining the defendant from damaging the plaintiff's northern wall in any manner. A claim of Rs. 500/- for damages was also made.
(2.) THE claim was resisted by defendant respondent mainly on the ground that the plaintiff was not the owner of the house and the wall in question and that no damage was caused to the plaintiff's wall nor any encroachment was being made and that the defendant was making constructions at the site of the old constructions which have fallen down. Commissions were issued for inspection of the locality and preparation of a site plan on three occasions. Firstly, it was issued ex parte and on the second and third occasions when both parties had put in appearance. The trial court found that the plaintiff was owner of the house in question but as regards the damages to his northern wall and the assertion about the defendent having made encroachment oh a portion of the land the plaintiff's case was held not established. On these findings the suit was dismissed. Feeling aggrieved the plaintiff preferred an appeal which also met the same fate. Again, feeling aggrieved the plaintiff has preferred this second appeal and it has been contended that the courts below have not taken into account the reports of the commissioners and particularly the report of the first commissioner which clearly established that the plaintiff's wall existed at the alleged place and that the same had been damaged and encroachment made on a portion of the land. Another contention raised was that the plaintiff sought to examine the first commissioner Sri Sachchidanand Agnihotri on oath but the opportunity was denied, and yet the court below has observed that in order to make the report of the first commissioner admissible, he should have been produced in the witness box. I have heard the learned counsel for the parties and have also gone through the record. It has not been denied that a commission was issued to Sri Sachchidanand Agnihotri, Advocate, who submitted his report dated 19th September, 1967. He has also annexed a site plan indicating the position as he found on the spot. He found a Kachcha wall belonging to the plaintiff. He also found foundations dug almost parallel to that wall also at some other places. After the service of the injunction order, according to the plaintiff, the defendant continued his constructions and committed breach of the court's orders. Accordingly an application was made under Order 39 rule 2 CPC on which the learned Munsif found that a breach had certainly been committed but in appeal the learned District Judge observed otherwise. The learned District Judge was of the view that two site plans indicating slightly different positions had been filed by the plaintiff and this indicated his mala fides and suggested that he wanted to encroach upon the defendant's land in future and therefore, had done so intentionally. The site plans were in fact rough sketch maps prepared not to scale or anything of the like. Learned counsel for the appellant has laid great stress on the point that the first report of the Commissioner was inadmissible and could not be looked into. His main contention is that this was issued ex parte and then it had been criticised by the court in appeal against the proceedings under Order 39 rule 2 CPC. I am, however, unable to agree with the contention. It will appear from the order sheet dated 26-9-1967 and earlier order-sheets that after the receipt of the report of the commissioner, the learned Munsif had called upon the parties to file objections, if any, and because none was filed, therefore on 26-9-1967 the court confirmed the report saying that no objections had been filed against the report. In the circumstances, therefore, it cannot be said that the report had the character of ex parte report. Moreover, in a case of this nature where the locality has to be inspected in order to determine the position then existing, the commission is very often issued exparte, but in the instant case the commissioner has mentioned that Sabir Mian defendant was also present at the time of inspection although he had not signed the report. Opportunity was also given to file objections but none had been filed and thereafter the report was confirmed. In the circumstance, therefore, it cannot be said that the report was in any manner inadmissible as a piece of evidence.
(3.) RELIANCE has been placed by the learned counsel on a decision of the Calcutta High Court in Bibhuti Bhushan v. Sadhan Chandra, AIR 1965 Calcutta 199. It was observed in that case that there was no warrant for an absolute proposition of law that disregard of the commissioner's report made after local investigation constitutes an error or defect in the procedure within the meaning of clause (c) of section 100 of the Code of Civil Procedure or that such disregard affects the merits of the case within the meaning of that section. In the instant case, what has been done is that the commissioner's report has not at all been taken into consideration by the trial court. Moreover the first appellate court which had certainly made a reference to that report has also refused to consider it on merits or make a reference to the fact stated in that report probably bucause in the appeal arising out of the proceedings for disobedience of injunction order that report had been criticised. In Bibhuti Bhushan's case, commissions were issued and every time objections were filed by both sides. The appellate court therefore, without relying on the commissione'r report had found that the plaintiff had not purchased the disputed land on which certain trees in dispute were standing. It was stressed that the commissioner's report should not have been disregarded and it was in this context that an observation was made that a disregard of the commissioner's report did not amount to such an error as required interference under the old section 100 as it stood before the amendment of 1977. The facts in the present case are entirely different and although opportunity was given to file objections yet they were not filed by the parties and as a fact the report was confirmed by a positive order of the court and still the trial court did not take into consideration the contents thereof, and similarly, the appellate court also did not consider the report on its own face value or merits. The present section 100 as amended empowers this Court to interfere if it is satisfied that the case involves a substantial question of law. A complete disregard of a valuable document which alone could have shown the position existing at the time of the institution of the suit is bound to result into serious injuries, and if a piece of relevant and valuable evidence has been completely left out of consideration, it will certainly be a substantive question of law. In Bibhuti Bhushan's case it was also observed that the court was not precluded from examining the commissioner even at a later stage either suo motu or at the instance of any of the parties to the suit. In the first instance, the contents of the report should have been looked into even without examining the comissioner as the report had been confirmed after giving opportunity to file objections and neither party as a matter of fact had objected to the report. Assuming that in view of certain observations made by the appellate court in the miscellaneous proceedings arising out of breach of injunction order the plaintiff wanted to examine the commissioner, the opportunity should not have been denied more so when in pursuance of the aforesaid order of the appellate court a notice was issued to the plaintiff why a complaint should not be filed against him and the same was discharged in 1975. Perhaps the request to examine the commissioner was made in 1976 only on that account. Learned counsel for the appellant has also argued that the commissioner was sought to be summoned by an application dated 9-2-1970 but when evidence was adduced in December 1971 he was not examined. There is no apparent reason why the commissioner was ultimately not examined. But it may be that in view of the confirmed report it might not have been considered necessary to examine him and the necessity was felt only after the observations of the appellate court and the discharge of the notice in 1975. Be that as it may, the fact remains that the report contained an important piece of evidence which has been completely overlooked and even opportunity to examine the commissioner, though the request was belated, was rejected. Learned Counsel also relied upon H. Kutubuddin v. Allah Banda, AIR 1973 Alld. 235. In that case objections were filed against the report about which the court had ordered that they will be taken into consideration at the time of final hearing after the evidence had been brought on record. However, no orders were thereafter passed on the objections. One of the objections was that the defendant was not present at the time of the local inspection by the commissioner. Some other objections were also raised. The first appellate court in the circumstances observed that the trial court ought not to have implicitly relied upon the material obtained in the commissioner's report. This proposition of law was challenged and this court observed that the report of the commissioner was not a substantive piece of evidence ; therefore when it was ignored by the first appellate court, the order was, not erroneous. As already observed earlier, the commissioner's report in the present case was made after local inspection when both parties were present even though the commission was issued ex-parte and moreover the report had been confirmed after opportunity to the parties to file objections. As the report was a valuable piece of evidence to indicate whether the plaintiff's wall existed on the spot and if so, was any encroachment being made by the defendant and which evidence was no more available when during the progress of the constructions a second commission was issued to inspect the locality, the first commissioner's report was an important document to be taken into consideration, whatever value might have been attached by the court thereafter to the observations made in the report.;