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Haji Kutubuddin v. Allah Banda .
Structured Summary of the Opinion
Factual and Procedural Background
This appeal arises from a suit by the plaintiff for recovery of Rs. 1,100 as damages for alleged breach of contract concerning timber from twenty-eight mango trees (including roots). The parties agreed that the defendant would uproot the trees and make timber and roots available on payment of the agreed price plus labour charges, and the plaintiff would transport the timber in truck in specified lots. The contract provided that if specified lots were not ready when the plaintiff's trucks arrived, the defendant would be liable for truck-hire.
The plaintiff alleged the defendant felled only twenty-five trees, retained the roots of five trees, and did not have the specified quantity of timber ready when the plaintiff's truck arrived. The plaint was presented on 26-11-1962. A lawyer-Commissioner was appointed on 28-11-1962 to make a local inspection. On 01-12-1962 the Commissioner reported that twenty-five trees had been cut, roots of five trees had not been taken out and three trees were still standing, and he noted that the defendant was present at the inspection.
On 09-02-1963 the defendant filed a written statement and objected to the Commissioner's report, alleging he was not present when the Commissioner inspected the spot; that objection was not supported by an affidavit. The trial Munsif directed that the objection would be considered at final hearing. Witnesses were examined. The Munsif, without deciding the objection, implicitly relied on the Commissioner's report (as corroboration of the plaintiff's version), disbelieved the defendant's evidence and decreed the plaintiff's suit.
On appeal, the lower appellate court discarded the Commissioner's report on the grounds that its contents were not legal evidence because the objection had remained undecided, the defendant had no opportunity to controvert the report and the Commissioner had not been examined. Relying on the defendant's evidence, the appellate court allowed the appeal, set aside the trial judgment and decree and dismissed the plaintiff's suit. The plaintiff then brought this second appeal.
Legal Issues Presented
- Whether a trial court may implicitly rely on a lawyer-Commissioner's report and treat it as substantive evidence where an objection to that report has been filed but not decided, and where the Commissioner has not been examined as a witness.
- Whether an objection to a Commissioner's report must always be supported by an affidavit to be effective, and whether the absence of such an affidavit precludes a court from rejecting the objection and relying on the report.
- Whether the lower appellate court erred in discarding the Commissioner's report and setting aside the trial court's decree based on its assessment of the evidence.
Arguments of the Parties
Appellant's (Plaintiff) Arguments
- The objection to the Commissioner's report, not being supported by an affidavit, was ineffective and the report amounted to legal evidence on which the trial court should have recorded findings.
- The lower appellate court's finding of fact was vitiated because it omitted consideration of the Commissioner's report relied upon by the trial court.
- Relied on precedents (Shiv Sahai v. Har Narain and Chandan Mull Indra Kumar v. Chiman Lal Girdhar Das Parekh) to support the proposition that a court should ordinarily accept the Commissioner's report, particularly where the report states inspection was made in the presence of parties.
Respondent's (Defendant) Arguments
- The defendant alleged (in an objection) that he was not present at the spot when the Commissioner made the inspection; this objection was not, however, supported by an affidavit in the record.
- On appeal the defendant relied on his own evidence; the appellate court found the defendant's evidence credible and, having discarded the Commissioner's report for the stated procedural reasons, allowed the appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shiv Sahai v. Har Narain, AIR 1963 All 413 | Authority for the proposition that where a lawyer-Commissioner reports he inspected in presence of parties, and the defendants' contrary assertion is unsupported by affidavit, courts should generally accept the Commissioner's report unless there is cogent evidence against it. | The court considered the precedent but declined to treat it as laying down a rigid rule of law; it distinguished the instant facts and held no absolute rule exists that a court must accept a Commissioner's report or that objections always require affidavits. The precedent was therefore not followed as a binding rule in this case. |
| Chandan Mull Indra Kumar v. Chiman Lal Girdhar Das Parekh, AIR 1940 PC 3 (Privy Council) | The Judicial Committee's observation that interference with the result of a long and careful local investigation should be avoided except on clearly defined and sufficient grounds. | The court cited the observation but did not adopt it as mandating automatic acceptance of a Commissioner's report; it treated the principle as one factor but emphasized that each case depends on its facts and that the report is not substantive evidence unless the Commissioner is examined. |
Court's Reasoning and Analysis
The court analysed the matter by examining the factual matrix and the legal status of a Commissioner's report. It stated that the authorities relied upon by the appellant do not establish any absolute or universal rule that a court must accept a lawyer-Commissioner's report or that an objection to such a report must always be supported by an affidavit.
The court emphasised that whether to take a Commissioner's report into account depends upon the facts and circumstances of each individual case. Applying that principle to the present facts, the court noted several relevant points:
- The commission was issued immediately after presentation of the plaint and no notice had been issued to the defendant; thus it could not be presumed the defendant was informed of the visit.
- The Commissioner's report did not state who identified the person named as the defendant to the Commissioner, and there was no suggestion that the Commissioner personally knew the defendant beforehand.
- The trial Munsif had entertained the defendant's objection to the report and had directed that the objection would be considered at final hearing; the Munsif never recorded any order finally disposing of that objection.
- The objection raised by the defendant was not confined to the allegation of absence at the visit but encompassed several grounds that required consideration.
Given these circumstances, the court agreed with the lower appellate court's conclusion that the trial court should not have implicitly relied upon the Commissioner's report without deciding the objection and without examining the Commissioner. The court reiterated the legal position that a Commissioner's report is not, by itself, substantive evidence; it may become substantive only if the Commissioner is examined as a witness. The court also noted that a trial court may take the report into account after objections to it have been disposed of, to assess other substantive evidence.
Finally, having reviewed the appellate judge's scrutiny of the parties' evidence, the court found no legal or procedural error in the appellate court's approach and accepted that the appellate court's finding of fact should be binding in the second appeal.
Holding and Implications
APPEAL DISMISSED (with costs).
Holding (core ruling): The second appeal was dismissed. The court held that (a) there is no absolute rule requiring a court to accept a Commissioner's report in all cases or mandating that objections to such a report must always be supported by affidavit; (b) a Commissioner's report is not substantive evidence unless the Commissioner is examined as a witness; and (c) whether to rely on a Commissioner's report depends on the facts and circumstances of the case.
Implications: The direct consequence is that the lower appellate court's decision to discard the Commissioner's report, rely upon the defendant's evidence, set aside the trial court's decree and dismiss the plaintiff's suit is upheld. The opinion expressly declines to lay down a hard and fast rule regarding Commissioner's reports and does not purport to create a new binding precedent beyond its application to the facts of this case.
This summary is limited to the information and reasoning contained in the provided opinion and does not include material beyond that text.
1. This appeal is concluded by a finding of fact. The only argument raised in support of the appeal by the learned counsel for the plaintiff appellant was that the court below erroneously rejected from consideration the report of the Commissioner which was relied upon by the court of first instance. The plaintiff had sued for recovery of a sum of Rs. 1,100/- as damages for breach of contract committed by the defendant. Timber of twenty eight mango trees including the roots was sold by the defendant to the plaintiff. It was further agreed that the defendant will uproot the trees and make available the timber and roots on payment of agreed price plus the labour charges and the plaintiff would transport the same in truck in specified lots. It was also agreed that in case the specified lots were not ready to be transported at any time when the trucks of the plaintiff came to the spot, then the defendant would be liable for the truck hire also. It was alleged by the plaintiff in his plaint that the defendant only felled down twentyfive trees, kept back the roots of five trees and did not keep the specified quantity of timber ready for transport when the plaintiff's truck reached the spot. On this account the plaintiff claimed Rs. 1,100/- as damages, namely, price of uncut trees, five roots and hire charges for the truck. The plaint was presented in court on 26-11-1962. A lawyer Commissioner was appointed on 28-11-1962 to go to the spot and make a local inspection. On 1-12-1962 the Commissioner filed a report to the effect that twentyfive trees had been cut, roots of five trees had not been taken out and three trees were still standing. The Commissioner also noted in his report that the defendant was present when he went for local inspection. On 9-2-1963 the defendant filed a written statement and also filed an objection to the Commissioner's report. It was alleged by the defendant that he was not present at the spot when the Commissioner went for local inspection. This objection was not supported by any affidavit. The learned Munsif directed that the objection would be considered at the time of final hearing. Witnesses were examined on behalf of the parties. The learned Munsif without deciding the objection and relying implicitly on Commissioner's report as corroborating the plaintiff's version and disbelieving the defendant's evidence, decreed the plaintiff's suit. On appeal by the defendant the learned Judge of the lower appellate court discarded the Commissioner's report on the ground that the contents thereof would not be legal evidence as the objection had remained undecided and the defendant had no opportunity to controvert the report the Commissioner not having been examined. Then relying on the evidence of the defendant allowed the appeal, set aside, the judgment and decree of the trial court and dismissed the plaintiff's suit. The plaintiff has now come up in second appeal.
2. It was submitted by the learned counsel for the plaintiff appellant that the objection to the Commissioner's report not having been supported by an affidavit was of no avail and the Commissioner's report was legal evidence on the basis of which findings ought to have been recorded by the court below. The contention was that the finding of fact recorded by the lower appellate court was vitiated by omitting to take into consideration the evidence furnished by Commissioner's report. Reliance was placed on the case of Shiv Sahai v. Har Narain, AIR 1963 All 413. In that case the learned Single Judge held that where, the commissioner, a member of the court, had stated in his report that he had made the inspection in the presence of the parties, but the defendants alleged in their objection without supporting their allegation by an affidavit, that this statement was not true, the court would be acting improperly in accepting the bare words of an interested litigant against that of a lawyer executing a commission on behalf of the Court and in doing so the Court would depart from the well established tradition of the Courts to believe the word of a member of the Court who had executed a commission on behalf of the Court unless there is cogent evidence against it A reference was also made to a decision of the Privy Council in Chandan Mull Indra Kumar v. Chiman Lal Girdhar Das Parekh, AIR 1940 PC 3 wherein the Judicial Committee observed: “Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated.” I do not think the cases relied upon by the learned counsel for the plaintiff appellant lay down any rule of law. I am not aware of any rule of law that in every case a court is bound by the report of of the local investigation made by a lawyer Commissioner and that an objection to the report of the Commissioner must always be supported by an affidavit. I think it is for the court to take into consideration the report of the Commissioner or not to take that report into consideration in respect of a disputed fact. It will depend upon the facts and circumstances of each case. No hard and fast rule of law can be laid down in this regard, Here on facts of the instant case the commission having been issued immediately after the presentation of the plaint and no notice having been issued to the defendant, it cannot be presumed that the defendant was informed of the visit of the Commissioner. The Commissioner in his report does not say who identified before him Allah Banda, the defendant. It is not the case of any party that the Commissioner knew the defendant Allah Banda from before. Moreover, the learned Munsif himself entertained the objection and did not reject it on the ground that it was not supported by an affidavit. He had directed that the objection would be considered at the time of the final hearing after the evidence had been brought on record. I do not find any order, whatsoever, passed on the objection by the learned Munsif. The objection Was not founded only upon the allegation that the defendant was not present at the time of the local inspection by the Commissioner but on many other grounds also which required consideration. In those circumstances if the learned Judge of the lower appellate court held that the trial court ought not to have implicitly relied upon the material obtained in the commissioner's report, I do not think he fell into any legal or procedural error. It is not the law as I am aware of that a report of the commissioner is substantive evidence in the case. It may become substantive evidence only when the Commissioner is examined as a witness. Of course it is open to a court to take the report into consideration after objection against it had ben disposed of, in order to assess the substantive evidence produced by the parties in a case. The learned Judge of the lower appellate court assessed the evidence of the parties and fully scrutinised it before arriving at his finding. Since I do not find that in doing so the learned Judge fell into any legal error or procedural error, the finding recorded by him would be binding in second appeal.
3. I, therefore, dismiss this appeal with costs.
4. Appeal dismissed.
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