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K. Kandaswamy And Another v. K.C Ramaswami And Others
Factual and Procedural Background
The revision petition challenges an order of the trial Court which, according to the petitioner, was passed arbitrarily and without regard to Order 26, Rule 9 of the Code of Civil Procedure (C.P.C.). On 15-4-1988, at the instance of the plaintiffs, the trial Court appointed Mr. K. Kanda-swami as a Commissioner to inspect the suit properties; he submitted his report on 2-5-1988. On the same day the Court appointed another advocate, Mr. Sankaranarayanan, as a second Commissioner. The impugned order does not show any application by a party seeking the appointment of a second Commissioner, and the order’s language allegedly states only that "Mr. N.P had filed objections and with the consent of the previous Commissioner, and in the interests of justice, the second Commissioner is being appointed."
Legal Issues Presented
- Whether the trial Court may appoint a second Commissioner without any party making an application, and without complying with the procedure under Order 26, Rule 9, C.P.C.
- Whether a Court can discard the report of a previous Commissioner without giving convincing reasons explaining why that report cannot be acted upon.
- Whether appointing a second Commissioner with the "consent of the previous Commissioner" (as stated in the impugned order) is supported by any provision of law under the C.P.C., or whether such action is an exercise beyond jurisdiction.
Arguments of the Parties
Petitioner's Arguments
- The trial Court passed an arbitrary order without following Order 26, Rule 9, C.P.C., and therefore acted without jurisdiction.
- The first Commissioner (appointed at the plaintiffs' instance) had submitted his report, yet the Court immediately appointed a second Commissioner on the same day without any party application.
- No statutory provision permits the Court to appoint a second Commissioner merely with the consent of the previous Commissioner or based on objections filed by counsel rather than by the parties themselves.
- Reliance was placed on the decision in K. Viswanathan v. P. Shanmugham to show when a previous Commissioner's report can be set aside; the court must provide convincing reasons to discard an earlier report.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Viswanathan v. P. Shanmugham 98 L.W 48 S.N = 1985-1-M.L.J 254 | When a previous Commissioner's report may be scrapped; requirement that the Court give convincing reasons for not acting on the previous report. | The opinion refers to this authority to support the proposition that the Court must give convincing reasons before discarding an earlier Commissioner's report; this principle was applied in concluding that the impugned order lacked such justification. |
Court's Reasoning and Analysis
The Court found multiple legal deficiencies in the impugned order. First, the trial Court did not demonstrate adherence to the procedure set out in Order 26, Rule 9, C.P.C., when it appointed a second Commissioner on the day an earlier Commissioner had submitted his report. The opinion stresses that a Presiding Officer must act within the four corners of the Code and cannot rely on informal notions of commonsense to exercise powers that are governed by statutory procedure.
Second, the Court observed that objections filed (as noted in the order) do not, by themselves, justify the immediate appointment of a second Commissioner, and that objections are filed by parties (plaintiffs or defendants) rather than by counsel acting alone. The opinion also noted that no legal provision was shown which authorises appointment of a second Commissioner merely with the consent of the previous Commissioner.
Third, relying on the cited precedent K. Viswanathan v. P. Shanmugham, the Court reiterated that it is obligatory to provide convincing reasons when a previous Commissioner's report is to be set aside. The impugned order did not furnish such reasons.
Because the order suffered from more than one illegality and the learned Judge had not shown knowledge of when a second Commissioner could properly be appointed, the Court concluded the order was unsustainable.
Holding and Implications
The revision petition is allowed and the impugned order is set aside.
Direct consequences: the trial Court's order appointing a second Commissioner was set aside, the civil revision petition was allowed, costs were awarded, and counsel's fee was fixed at Rs. 100.
Broader implications: the opinion confines itself to the facts and the procedural error in the impugned order and does not purport to lay down any new, general precedent beyond emphasizing adherence to Order 26, Rule 9, C.P.C., and the requirement to give convincing reasons before discarding a prior Commissioner's report.
1. On the trial Court passing an arbitrary order without looking into O. 26, R. 9, C.P.C, this revision petition is preferred.
2. On 15-4-1988 at the instance of the plaintiffs, Court appointed one Mr. K. Kanda-swami as Commissioner to inspect the suit properties. He submitted his report on 2-5-1988. On that day itself, the court had appointed another advocate by name Mr. Sankaranarayanan as Commissioner to inspect the properties.
3. It is not spelt out in the order as to where and how exactly the Court gets such a power to straightaway appoint another Commissioner without any of the parties asking for it, by filing an application. When the procedure to be followed by the Court is found in the Code of Civil Procedure, whenever it chooses to pass an order it has to acquaint itself with the prescribed procedure. If it fails to adhere to the procedure, it would be acting without jurisdiction. The persons who suffer by such illegalities would be the litigants. It is self-evident that the learned Judge had not equipped himself as to how and when a second Commissioner could be appointed. It is stated that no party to the proceedings had asked for the appointment of a second Commissioner. The more or less cryptic order states that as Mr. N.P had filed objections and with the consent of the previous Commissioner, and in the interests of justice, the second Commissioner is being appointed. It must be remembered that the objections are either by the plaintiffs or defendants and not by counsel who appear for them. No provision of law is shown to this Court which would enable a Court to appoint a second Commissioner with the consent of the previous Commissioner. A Presiding Officer of the Court cannot function by relying upon the commonsense aspect as known to him, but has to function within the four corners of the Code of Civil Procedure.
4. Merely because certain objections have been filed, it would not result in a second Commissioner being appointed, on that day itself. Learned counsel for the petitioner relies on the decision in K. Viswanathan v. P. Shanmugham 98 L.W 48 S.N = 1985-1-M.L.J 254, to show as to when exactly the report of a previous Commissioner could be scrapped. It is obligatory on the part of the Court to give convincing reasons as to why the previous report filed cannot be acted upon.
5. Therefore, when the order passed suffers from more than one illegality, evidently committed without any knowledge as to when a second Commissioner can be appointed, it is hereby set aside, resulting in the civil revision petition being allowed with costs. Counsel's fee Rs. 100.
RR/VCS.
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