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T.R Rajagopala Iyer v. T.R Ramachandra Iyer.
Factual and Procedural Background
This petition by the plaintiff challenges an order of the Second Additional District Judge, Coimbatore, appointing a Commissioner for local inspection. The underlying suit was for specific performance and for mesne profits and had been decreed after litigation that reached the Supreme Court. In the enquiry for mesne profits the trial court fixed Rs. 5,000 per annum. The properties in dispute included 14 acres of single-crop wet lands, 3 acres of cocoanut groves and 58 acres of dry lands. In the lower appellate court, it was urged in support of an application for appointment of a Commissioner that inspection was necessary because the trial court had not addressed alleged reclamation of jungle lands to cultivable lands, areas that were rocky and uncultivable, and that such facts could be proved only by a Commissioner's report; on this basis it was contended the decree for mesne profits could not be sustained. The lower appellate court considered Order XLI, R.27, C.P.C. and decisions of the Allahabad High Court and the Supreme Court and ordered appointment of a Commissioner. The present petition seeks to set aside that order.
Legal Issues Presented
- Whether an appellate court may appoint a Commissioner for local inspection under Order XLI, R.27, C.P.C. or by virtue of S.107(2) C.P.C.
- Whether the lower appellate court erred in ordering appointment of a Commissioner at the appellate stage without a merits-based examination and whether such appointment should be sparingly used or, instead, the matter remitted to the trial court.
Arguments of the Parties
Arguments in support of appointment (as stated in the lower appellate court)
- The trial court did not consider alleged reclamation of jungle lands into cultivable lands; income from reclaimed lands should be excluded.
- There were rocky areas which could not be cultivated and this should be taken into account.
- These facts could be proved only by appointment of a Commissioner and his report.
- On that ground it was contended that the decree for mesne profits could not be sustained.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| a decision of the Allahabad High Court | Consideration of the scope of Or. XLI, R.27, C.P. Code (as relied on by the lower appellate court) | The lower appellate court relied on this decision (along with others) to conclude it had power to appoint a Commissioner and ordered appointment; the present court held that reliance and resulting order were incorrect and set the order aside. |
| a decision of the Supreme Court | Consideration of the scope of Or. XLI, R.27, C.P. Code (as relied on by the lower appellate court) | The lower appellate court relied on this decision (along with others) to conclude it had power to appoint a Commissioner and ordered appointment; the present court reversed that approach and set the order aside. |
Court's Reasoning and Analysis
The court analysed the matter as follows:
- Order XLI, R.27(1)(b) relates to additional evidence; its language does not support construing a Commissioner's report, appointed and submitted at the appellate stage, as "additional evidence" for purposes of that rule.
- Section 107(2) C.P.C. gives an appellate court, so far as may be, the same powers and duties as are conferred on courts of original jurisdiction, but that subsection must be read in the context of Sub-section (1) and the matters therein; its apparent breadth should not be given an unduly wide construction to justify routine appointment of a Commissioner on appeal.
- Even assuming S.107(2) authorises appointment of a Commissioner on appeal, such a power must be exercised very sparingly and only in the interests of justice.
- The normal and proper course in such cases is for the appellate court to decide the appeal and, if it thinks fit on the merits, remit the matter to the trial court to appoint a Commissioner and act on the report before determining mesne profits.
- The lower appellate court treated appointment as a matter of course because it had the power; the present court found that approach incorrect and held that appointment can be ordered only if justified on the merits.
Holding and Implications
The order of the court below appointing a Commissioner is set aside; the petition is allowed on those terms.
Consequences: the appointment order is vacated. The lower appellate court remains free, when disposing of the appeal, to examine whether the ends of justice suffered at trial because of inadequate investigation of the physical features relied upon by the defendant, and if so, to set aside the decree for mesne profits and remit the matter to the trial court for fresh disposal and, if appropriate there, appointment of a Commissioner. No costs.
This petition by the the plaintiff is directed against an order of the Second Additional District Judge, Coimbatore, appointing a Commissioner for local inspection. The suit was one for specific performance and for mesne profits which was eventually decree after the litigation had seen several courts, including the Supreme Court. In the enquiry fer mesne profits the trial court found that a sum of Rs. 5000 per annum could be fixed as menso profits. It appears 14 acres of single crop wet lands, 3 acres of cocoanut grovs and 58 acres of dry lands are the properties involved in the suit. In the lower appellate court is support of the application for Commissioner it was stated that it was necessary to have the properties inspected, because no attention has been paid in the trial court with reference to the alleged reclamation of jungle lands into cultivable lands and that in such a case, income from such land should be excluded and there were also areas which were rocky and could not be cultivated and this too should be taken into account. All these facts, according to the petitioner in the court below, could be proved only by appoint ment of a Commissioner through his report. On this ground it was stated in the court below that the decree granted by the trial eourt for mesne profits could not be sustained. The lower appellate court has devoted its entire order to a consideration of the scope of Or. XLI, R. 27, C.P Code and a decision of the Allahabad High Court and of the Supreme Court, and being of opinion that the appellate court had the power, he ordered appointment of a Commissioner.
It is rather surprising that the Second Additional District Judge did not examine the application for appointment of a Commissioner on its merits whether it was required in the intersts of justice. I may observe that appointment of a Commissioner in the appeal is a rarity nsd is seldom resorted to. In my view, such an appointment is not authorised by R. 27 of Or. XLI. That rule relates to additional evidence and the language of R. 27 (1) (b) does not lend itself te a construction that the report of a Commissioner to be appointed and submitted in the appel late stage is regarded as additional evidence for purposes of that rule. It is true that S. 107 (2) C.P Code gives the appeallate court the same powers and the same duties as nearly as may be as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted in them. Wide at the phraseology of this sub-section may appear, I am inclined to think that when Sub-S. (1) and the matters mentioned therein pre kept in view, the power of the appellate court under Sub-S. (2) should be understood not as widely as it may prima faice appear to justify. In any case, I think assuming that S. 107 (2) authorison the appellate court to appoint a Commissioner for inspection, that is a power which should be very sparingly used and only in the interests of justice. The normal course which the appellate eourt in rich cases should adopt is to allow the appeal itself from the decree for mesne profits and then to direct the trial court to appoint a Commissioner if it thought fit on the merits, consider the Commissioner's report and then come to the conclusion on the quantum of mesne profits. The Second Additional District Judge in this case may well have adopted that course, but only on his judgment of the merits and the justice of the case.
As I said, the lower appellate court seems to have taken it for granted that the applica tion for appointment of a Commissioner at the appellate stage should be granted as a matter of course, which is not the case. The order of the lower appellate Court amounts to this that because the appellate court possesses the power, according to it, therefore it made an order for appointment of a Commissioner. Clearly that view is wrong. A Commissioner, even if there is power, can be appointed only if it justified en the merits.
The order of the court below is set aside. It is, however, open to the lower appellate court in disposing of the appeal to see whether the ends of justice have suffered at the trial stage because proper Investigation bad not been made as to the physical features and the other features pointed out by the defendent and whether the defendant had been diligent in prosecuting his case in the trial court, and if it is satisfied on such an examination, to set aside the decree for mesne profits and remit the matter to the trial court for fresh disposal. This observation is not to be understood by the lower appellate court as an invitation to it to allow the appeal, which I have no doubt, the court below will consider on its own merits.
The petition is allowed ia those terms. No costs.
v.c.s
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