- (1.) POONAM Srivastava, J. Heard Sri Satish Chandra Srivastava, learned Counsel for the petitioners and Sri Mannu Chaudhery, Advocate for the caveator-respondents.
(2.) THIS writ petition has been filed challenging the order dated 9-12-2005 passed by Additional District Judge Court No. 12, Allahabad in Civil Revision No. 696 of 2003 and order dated 21- 10-2003 passed by the Additional Civil Judge (Junior Division), Court No. 10, Allahabad in Original Suit No. 761 of 2002. The plaintiff-petitioners instituted a suit for permanent injunction against the defendant-respondents. The claim of the petitioners was that they are in peaceful possession over the Sahan and also they have Charahi and animal shed. On an application moved by the defendants, the trial Court appointed an Advocate Commissioner who submitted his report. The petitioners filed their objection to the Commissioner's report and the defendants filed their counter objections. The trial Court vide order dated 21-10-2003 confirmed the Commissioner's report subject to evidence. The Revisional Court declined to interfere in exercise of powers under Section 115 CPC. Reliance has been placed by Counsel for the petitioners on a decision of this Court in the case of Ram Lakhan and Anr. v. District Judge, Basti (now Siddharth Nagar) and Ors. , 1993 ACJ 252. It was ruled in this decision that the Court, if being dissatisfied from the report of the Commissioner for the reason that further details are required for ascertaining certain facts, the Court has power to appoint another Commissioner. However, it was further held that the report of earlier Survey Amin is not wiped out unless and until a specific order is passed to the said effect. Other decision relied upon by the Counsel is Vemba Gounder v. Pooncholai Gounder, AIR 1996 Madras, 347 and Balakrishna Menon and Anr. v. Padmavathy Amma and Anr. , AIR 1993 Kerala, 218. On the basis of the aforesaid decisions, it is argued that the mistakes committed by first Commissioner, if confirmed without any objection from both the parties, the appointment of second Commissioner cannot be insisted unless and until the first report is set aside. On the basis of the aforesaid decisions learned Counsel for the petitioners has argued that in the instant case since the Commissioner's report has been confirmed subject to evidence without discussing the objections moved by the petitioners, this will cause irreparable damage to the petitioners' case. In the circumstances, it is emphasized that the order passed by the trial Court confirming the Commissioner's report subject to evidence is neither here nor there. In the event, the entire evidence is recorded and thereafter the Commissioner's report is found to be short of complete information regarding determination of the location etc. The second commission cannot be issued after completion of the trial, therefore, the report of the Commissioner has to be decided as a preliminary issue. Counsel of the petitioners has stated that the report of the Commissioner is not in conformation with the provisions of Order XXVI Rule 9 CPC whereas the Counsel for the caveator-respondents submits that the report of the Commissioner does not call for any interference as the report has been submitted in accordance with Order XXVI Rules 9 and 10 CPC. After hearing the respective Counsel for the parties and taking into consideration the various decisions cited by the Counsel for the petitioners, I do not find any illegality in the order passed by the trial Judge. The Court has only passed an order confirming the Commissioner's report subject to evidence, this order does not deprive the power of the Court to appoint another Commissioner. The evidence has yet to be led by the plaintiff and defendants and the parties have a right to cross- examine the Commissioner and it is still open for the plaintiffs and defendants to challenge the report of the Commissioner on the basis of the evidence adduced. In fact 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. This is what has been ruled in paragraph 12 in the case of Ram Lakhan (Supra ). For ready reference paragraph 12 is quoted below: "it was next urged by the learned Counsel for the respondent that the report submitted by the Amin has been confirmed subject to evidence and the Court had fixed the date for evidence in the case and the trial Court acted illegally in appointing another Amin to survey the plots in question. The fact that the report of a Commissioner is confirmed subject to evidence does not deprive the power to the Court to appoint another Commissioner. Order XXVI, Rule 9 of Civil Procedure Code provides for the appointment of Commissioner for local investigation, Rule 11 for examination of accounts and Rule 13 for making partition. 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 investigations. 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-exmamine the Commissioner in open Court touching any of the matters referred to or mentioned in his 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. "
(3.) IN the circumstances, I am of the considered view that no injury has been caused to the petitioner on account of the impugned orders. No error has been committed by the Revisional Court as well. IN fact a revision under Section 115 CPC against an order confirming the Commissioner's report subject to evidence in the suit does not amount to a case decided. IN fact the petitioners were not liable to invoke the revisional jurisdiction. Since the Court has left it open, conformation of the Commissioner's report subject to evidence, it is absolutely clear that the intention of the trial judge was to permit the parties to raise any other objection in respect of the Commissioner's report after evidence is recorded. IN the circumstances, the right of the petitioners to challenge the report still exists and no prejudice has been caused to them. For the reasons discussed above, I do not find any illegality in the impugned orders. The writ petition lacks merit and is accordingly dismissed. .;