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Case Number

Civil Revn. No. 461 of 1983*

Advocates

Shyam Mohapatra
S.Mishra

Judges

K.P Mohapatra, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision challenges an order of the learned Munsif, Anandapur, which accepted the report of a survey knowing commissioner appointed under Order 26, Rule 9 of the Code of Civil Procedure.

Opposite party No. 1 was the plaintiff and the petitioner was defendant No. 1 in Title Suit No. 49 of 1981-I before the Munsif, Anandapur. The suit sought declaration of title and confirmation of possession with respect to the schedule 'Ka' property, and recognition of an easement over the schedule 'Kha' property, among other reliefs. On 18-2-1982 the plaintiff filed a petition for appointment of a pleader commissioner for local investigation; the petitioner, by his counter dated 26-2-1982, requested that a survey knowing commissioner be deputed instead. The learned Munsif, by order dated 23-3-1982, appointed a survey knowing commissioner under O. 26, R. 9.

The appointed commissioner performed a local investigation and, after being examined in court as C.W.1, filed a report (Ext. III) and a map (Ext. IV) on 4-7-1982. The petitioner objected to the report and map, alleging that the commissioner had submitted the report in favour of the plaintiff while the petitioner was absent and that the report should thus be rejected. The learned Munsif, after considering evidence including the commissioner's testimony that notices were served on both parties but that the petitioner refused to accept the notice, accepted the commissioner's report by the impugned order. The petitioner filed the present civil revision under Section 115 of the Code challenging that acceptance.

Legal Issues Presented

Whether Order 26, Rule 18 of the Code of Civil Procedure is mandatory in requiring that the court direct the parties to appear before a commissioner and that failure to comply with that rule vitiates the commissioner's report.
Whether there was compliance with the notice requirements of O. 26, R. 18 in the present case (i.e., whether the petitioner was served with notice of the commissioner's local investigation).
Whether acceptance of the commissioner's report by the learned Munsif can be challenged by way of civil revision under Section 115 of the Code (i.e., whether the impugned interlocutory order is amenable to revision).

Arguments of the Parties

Petitioner's Arguments (Mr. Shyam Mohapatra)

The survey knowing commissioner neither offered nor served notice on the petitioner prior to proceeding to the suit property for local investigation.
This omission amounted to a breach of the principle of natural justice inherent in O. 26, R. 18 of the Code, which is mandatory, and therefore the commissioner's report is liable to be rejected.

Opposite Party No. 1's Arguments (Mr. S. Misra-2)

The petitioner had due notice of the commissioner's investigation.
Even if the petitioner had no notice, he would not be prejudiced by acceptance of the commissioner's report because he could appoint a survey knowing commissioner of his own choice for local investigation and examine that commissioner during the trial.
The order accepting the commissioner's report is not a "case decided" within the meaning of Section 115 of the Code; therefore, a revision under S. 115 may not be maintainable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Modalavalasam Latchan Naidu v. Rajah Saheb Maherban Destan, AIR 1934 Mad 548	Held that O. 26, R. 18 is mandatory and intended to ensure parties have notice of the commissioner's appointment and must attend.	Used to support the proposition that R. 18 is mandatory and parties must have notice and an opportunity to attend the commissioner's investigation.
In Re P. Moosa Kutty, AIR 1953 Mad 717	R. 18 enjoins the court at the time the commission is issued to direct that the parties shall appear before the commissioner.	Relied upon to emphasise the court's duty at the time of issuing the commission to direct parties to appear.
Mahant Narayana Dossjee Varu v. The Board of Trustees, AIR 1959 Andh Pra 64	Evidence gathered by a commissioner behind the back of the parties is not evidence in the case.	Applied to support the conclusion that reports made without proper notice cannot be accepted as evidence.
Labanya Debi v. Govinda Malik Barman, AIR 1960 Orissa 66	All parties must be individually given an opportunity to make representations by issuing notices to them under R. 18.	Used to reinforce the need for individual notice to each party before local investigation.
Pedda Seetharamappa v. Pedda Appaiah, AIR 1962 Andh Pra 84	R. 18 is mandatory; notice by the commissioner is not sufficient compliance and reports from investigations behind a party's back are unreliable.	Referenced for the position that where local investigation is made without notice to a party, the commissioner's report cannot be relied upon.
Sm. Mandera Mukherjee v. Sachindra Chandra Mukherjee, AIR 1962 Pat 211	Where the court has not directed the parties to appear before the commissioner, notice by the commissioner himself would not validate the appointment; such an appointment without notice is without jurisdiction.	Relied upon to show that absence of a court direction cannot be cured merely by the commissioner's notice in all circumstances and that jurisdictional defect may result.
Maroli Achuthan v. Kunhipathamma, AIR 1968 Ker 28	The presence of parties is imperative under O. 26, R. 18; there must be a court direction and notice to the parties or at least notice from the commissioner.	Used to underline the imperative nature of ensuring party presence for local investigation.
Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, AIR 1970 Delhi 205	Non-compliance with the mandatory provisions of R. 18 renders the appointment of a local commissioner without jurisdiction and the resulting report inadmissible as evidence.	Applied in concluding that failure to comply with R. 18 invalidates the commissioner's report.
Suraj Pal v. Smt. Meera alias Merhia, AIR 1973 All 148	Held that even if the court does not give notice in terms of R. 18, if the commissioner issues notice to the parties, it may be deemed sufficient compliance.	Cited as an instance where commissioner-issued notice was held sufficient, but the court in the present case analysed the facts and found that commissioner-issued notice had not been served on the petitioner.
Ram Gulam Choudhury v. Nawin Choudhury, AIR 1972 Pat 499	Observed (in the context of allowing further evidence) that orders confirming or setting aside a pleader commissioner's report may not be a 'case decided' within the meaning of S. 115 (this was obiter in the cited decision).	The court rejected reliance on this obiter dictum for the present case, holding that it cannot be accepted as a controlling precedent on maintainability under S. 115.
Doshei Dei v. Ram Rout, (1985) 1 Orissa LR 12 : AIR 1985 Orissa 77	Authority for interference under S. 115 where there is non-compliance/violation causing miscarriage of justice (as applied by the court).	Relied upon to justify interference by the revisional court when the acceptance of the report would violate natural justice and statutory requirements.

Court's Reasoning and Analysis

The court began with a textual and precedential analysis of Order 26, Rules 9 and 18 of the Code. R. 9 permits appointment of a commissioner for local investigation; R. 18(1) requires the court to direct that the parties appear before the commissioner personally or by agents or pleaders when a commission is issued.

Reviewing multiple precedents, the court concluded that R. 18 is mandatory. The line of authorities establishes that the court must direct the parties to appear and ensure proper notice so that they may participate in the commissioner's local investigation; in the absence of such notice the resulting information is not admissible as evidence. Some cases permitted commissioner-issued notice to suffice where the court did not itself give notice, but the court treated that as a fact-sensitive exception rather than a rule displacing the court's primary duty to direct and ensure notice.

Applying those principles to the present facts, the court found the following:

The learned Munsif did not give a direction in terms of O. 26, R. 18 for the parties to appear before the survey knowing commissioner on the date of investigation.
The notice produced by the commissioner (Ext. II) recorded service only on opposite party No. 1; it made no mention of service on the petitioner and contained no endorsement that the petitioner had refused the notice.
Given that the petitioner himself had sought appointment of a survey knowing commissioner earlier, there was no plausible reason for him to absent himself deliberately; therefore, the commissioner's later assertion in court that the petitioner had refused the notice was rejected by the revisional court as not credible.
Because the petitioner was not shown to have been served with notice and the commissioner's investigation proceeded "behind his back," the report and map could not be accepted as evidence under the authorities construing O. 26, R. 18.

The court also addressed the objection that the impugned order was not amenable to revision under S. 115 by reference to an obiter dictum in Ram Gulam Choudhury; it refused to treat that obiter as binding, and held that interference under S. 115 was appropriate where acceptance of the report would amount to violation of natural justice and non-compliance with the statutory rule, producing a gross miscarriage of justice (citing Doshei Dei v. Ram Rout).

Holding and Implications

Holding: Revision allowed. The impugned order accepting the survey knowing commissioner's report is vacated; the commissioner's report (Ext. III) and map (Ext. IV) are set aside.

Direct consequences and directions:

The learned Munsif is at liberty to re-issue the commission (to the same or any other commissioner), but only after hearing the parties in terms of O. 26, R. 18.
The parties are directed to appear before the learned Munsif on 16-5-1986 for directions regarding re-issuance of the commission.
Each party shall bear its own costs in the revision.
The Lower Court Record (L.C.R.) is to be returned forthwith.

The opinion does not purport to lay down new law; it applies established authority on the mandatory nature of O. 26, R. 18 and the consequences of non-compliance to the facts of the case, resulting in vacation of the impugned order.

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Chaitan Das v. Smt. Purnabasi Pattnayak And Others

1. This revision is directed against the order passed by the learned Munsif, Anandapur, accepting the report of the survey knowing commissioner.

2. Opposite party No. 1 is the plaintiff and the petitioner is defendant No. 1 in Title Suit No. 49 of 1981-I of the court of Munsif, Anandapur. The suit is for declaration of title and confirmation of possession in respect of the schedule ‘Ka’ property of the plaint, existence of right of easement over the schedule ‘Kha’ property thereof and for other reliefs. The petitioner is the main contestant of the suit. On 18-2-1982 opposite party No. 1 filed a petition for appointment of a pleader commissioner for local investigation. In his counter dated 26-2-1982 the petitioner submitted that a survey knowing commissioner should be deputed for local investigation. After hearing both parties, the learned Munsif, by order dated 23-3-1982 directed appointment of a survey knowing commissioner for local investigation under the provisions of O. 26, R. 9 of the Civil P.C (‘Code’ for short). Accordingly, a survey knowing commissioner was appointed and after local investigation, the commissioner (examined in court as C.W 1) submitted his report (Ext. III) and map (Ext. IV) on 4-7-1982. The petitioner filed objection to the report and map and inter alia stated therein that in his absence and being influenced by opposite party No. 1, the commissioner had submitted his report in support of the latter. Therefore, the report and map should be rejected. The survey knowing commissioner (C.W 1) was examined in court. He stated that he visited the suit property for making local investigation on 4-7-1982. Both the parties were served with notices. The petitioner refused to accept the notice. The learned Munsif, after consideration of the evidence, accepted the report of the commissioner by the impugned order.

3. Mr. Shyam Mohapatra, learned counsel appearing for the petitioner, urged that as a matter of fact the commissioner neither offered nor served notice on the petitioner before proceeding to the suit property for the purpose of local investigation. Therefore, for violation of the principle of natural justice inherent in O. 26, R. 18 of the Code, which is mandatory in nature, the report of the commissioner is liable for rejection.

Mr. S. Misra-2, learned counsel appearing for opposite party No. 1, on the other hand, contended that the petitioner had due notice. Even if he had no notice, he would not in any way be prejudiced in his defence of the suit because of acceptance of the report of the commissioner as he may have opportunity of taking out a survey knowing commissioner of his choice for local investigation and examine him during the trial of the suit. Further, the order of acceptance of the report of the survey knowing commissioner being not a case decided, a revision is not maintainable in terms of S. 115 of the Code.

The contentions made by the learned counsel require careful examination.

4. R. 9 of O. 26 empowers a court to depute a civil court commissioner for local investigation in a suit if he deems it requisite or proper for the purpose of elucidating any matter in dispute. R. 18(1) of O. 26, which is relevant for the purpose of discussion is quoted below for easy reference:—

“Where a commission is issued under this Order, the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders.”

This rule has been interpreted in several decisions of different High Courts. In AIR 1934 Mad 548, Modalavalasam Latchan Naidu v. Rajah Saheb Maherban Destan, Cornish, J. held that R. 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the commissioner and that they must attend his investigation. In AIR 1953 Mad 717, In Re P. Moosa Kutty, Ramaswami, J. held that R. 18 of O. 26 enjoins upon the court at the time the commission is issued to direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders. In AIR 1959 Andh Pra 64, Mahant Narayana Dossjee Varu v. The Board of Trustees. The Tirumalai Tirupati Devasthanamas, K. Subba Rao, C.J speaking for the court held that the information gathered by the commissioner behind the back of the parties is not evidence in the case. In AIR 1960 Orissa 66, Labanya Debi v. Govinda Malik Barman, J. held that according to R. 18 of O. 26, all the parties must be given individually an opportunity to make representation of their respective cases by issuing notices to them. In AIR 1962 Andh Pra) 84, Pedda Seetharamappa v. Pedda Appaiah, Manohar Pershad, J. held that it is mandatory by reason of O. 26, R. 18 on the court after issue of the commission to direct the parties to appear before the commissioner. He went to the extent of observing that notice issued by the commissioner is not sufficient compliance with R. 18 and where local investigation is made behind the back of the defendant, no reliance can be placed on the report given by the commissioner. In AIR 1962 Pat 211, Sm. Mandera Mukherjee v. Sachindra Chandra Mukherjee, Anant Singh, J. went to the extent of holding that where the court has not directed the parties to appear before the commissioner, any notice by the commissioner himself to the defendant would not validate the appointment of the commissioner. The order of the court appointing a commissioner without notice to the defendant is obviously without jurisdiction. In AIR 1968 Ker 28, Maroli Achuthan v. Kunhipathamma, a Division Bench held that the presence of parties is imperative under O. 26, R. 18. Hence there must be a direction by the court of which notice has to be given to the parties or, at least the commissioner should issue notice to the parties calling upon them to appear for investigation. In AIR 1970 Delhi 205, Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, a Division Bench observed that in case of non-compliance of mandatory provisions of R. 18 of O. 26, the appointment of the local commissioner is without jurisdiction and the report resulting from his inspection cannot be read as evidence. In AIR 1973 All 148, Suraj Pal v. Smt. Meera alias Merhia, an identical view was taken and it was held that even if the court does not give notice to the parties in terms of R. 18 of O. 26, if the commissioner issues notice to them, it would be deemed to be sufficient compliance. In view of the principle enunciated in these decisions, law is well settled that R. 18 of O. 26 is mandatory. It is the duty of the court to direct that the parties to the suit shall appear before the survey knowing commissioner in person or by their agents or pleaders at the time of local investigation. In the absence of notice by the court, notice issued by the commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence.

5. It is now to consider if in the present case there was compliance of R. 18 of O. 26. Manifestly, the court did not direct the parties to the suit to appear before the survey knowing commissioner on the date of local investigation. The notice given by the survey knowing commissioner is Ext. II. He has written the names of all the parties to the suit therein. But it appears from it that notice was served only on opposite party No. 1. There is no mention in Ext. II that notice was served on the petitioner, nor is there any endorsement to the effect that he had refused to accept the notice. As a matter of fact, when the survey knowing commissioner was appointed at the instance of the petitioner, there was no reason why he should have kept himself away despite service of notice on him. In view of this clinching piece of evidence, the development made by the commissioner (C.W 1) while giving evidence in court that he offered the notice, but the petitioner refused to accept the same cannot be accepted as true. I am, therefore, convinced that the survey knowing commissioner did not serve notice on the petitioner before proceeding to the suit property for the purpose of making local investigation and so his report and map prepared behind his back cannot be accepted as evidence.

6. Mr. S. Misra-2 cited a decision reported in AIR 1972 Pat 499, Ram Gulam Choudhury v. Nawin Choudhury, in which it was held that an order confirming or setting aside a pleader commissioner's report and ordering fresh investigation may not be a ‘case decided’ within the meaning of the expression ‘case decided’ in S. 115 of the Code. It is to be pointed out that the case related to allowing the plaintiff to adduce further evidence after defendant No. 1 has closed his case. In that context, the learned single Judge had examined as to whether it was a case decided and while doing so by way of obiter, he gave some illustrations of purely interlocutory orders which are not covered by the expression ‘case decided’ within the meaning of S. 115. This obiter dictum cannot be accepted as a precedent in this case. On the other hand, if the impugned order is allowed to stand, there shall be violation of the principle of natural justice apart from non-compliance of the provisions of O. 26, R. 18 and so there shall be gross miscarriage of justice calling for interference in exercise of powers under S. 115 of the Code, as has been decided in (1985) 1 Orissa LR 12 : (AIR 1985 Orissa 77), Doshei Dei v. Ram Rout. In this view of the matter, the contention of Mr. S. Misra-2 that no prejudice will be caused to the petitioner for acceptance of the report of the commissioner is thoroughly untenable.

7. For the reasons stated above, the impugned order passed by the learned Munsif cannot be supported according to law, which is vacated. The report and map of the survey knowing commissioner are set aside. The learned Munsif shall be free to re-issue the commission, either to the same commissioner or to any other commissioner, after hearing the parties, who are directed to appear before the learned Munsif on 16-5-1986 for directions. The civil revision is accordingly allowed. Parties shall bear their own costs.

The L.C.R be sent back at once.

Revision allowed.

Chaitan Das v. Smt. Purnabasi Pattnayak And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Shyam Mohapatra)

Opposite Party No. 1's Arguments (Mr. S. Misra-2)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chaitan Das v. Smt. Purnabasi Pattnayak And Others

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