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Modalavalasam Latcha... v. Rajah Saheb Maherban...
Factual and Procedural Background
The Petitioners are defendants in a suit concerning the removal of a bund they allegedly wrongfully raised to divert water flowing into the Plaintiff's tank. The plaint was filed on 22nd July 1932, accompanied by a petition for the appointment of a Commissioner to inspect the locality and prepare a plan. Notice was ordered to be served on the defendants, returnable on 23rd August 1932, and was served on 17th August 1932.
Subsequently, on 29th July 1932, the plaintiff filed another petition for the issue of an emergent commission, alleging that waiting for service of notice would cause delay and allow the defendants to alter the land by including a certain channel. The Court granted this petition and issued a warrant to the Commissioner, who inspected the site on 31st July and signed the report on 2nd August 1932.
No notice of this second petition or of the Commission's issuance was given to the defendants, nor were they afforded the opportunity to be present during the inspection. The defendants later filed a revision petition challenging the validity of the Commissioner's report and the procedure followed.
Legal Issues Presented
- Whether the Court can issue a Commission ex parte without notice to the opposing party, especially under emergency circumstances.
- Whether the failure to give notice and opportunity to the defendants to appear before the Commissioner violated mandatory procedural rules under Order 26, Rules 10(2) and 18 of the Civil Procedure Code.
- Whether the revision petition filed beyond 90 days from the District Munsif's initial order but within 90 days from the subsequent order confirming the Commissioner's report was maintainable.
Arguments of the Parties
Respondent's Arguments (Mr. Govindarajachari)
- The revision petition was filed after the 90-day limitation period prescribed by Rule 41-A of the Appellate Side Rules from the date of the District Munsif's order dated 29th July 1932.
- The order of 29th July was a final order, and the respondents should have filed the revision petition within 90 days of that order.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court emphasized the mandatory nature of Rule 18 of Order 26 of the Civil Procedure Code, which requires that parties be directed to appear before the Commissioner in person or through agents or pleaders. The Court held that the issuance of a Commission without notice to the defendants and without giving them an opportunity to be present during the inspection was improper and unauthorized. It rejected the suggestion that an emergency justified the ex parte issuance of the Commission, noting that no greater emergency existed on 29th July than on 22nd July when the initial petition was filed.
Regarding the limitation issue, the Court found that Rule 41-A does not impose an absolute bar and that delay may be excused. It considered the defendants’ attempt to object to the Commissioner's report before the Munsif as a proper course of action that justified excusing the delay in filing the revision petition. The Court further held that it was open to the defendants to bring a revision petition against the Munsif’s order confirming the Commissioner's report after objections.
Holding and Implications
The revision petition is allowed with costs throughout. The Court set aside the District Munsif's order dated 29th July 1932, resulting in the nullification of the Commissioner's plan and report.
The direct effect of this decision is to invalidate the Commissioner's report obtained without proper notice and opportunity to the defendants. No broader precedent beyond this case was established.
The Petitioners are defendants in a suit for the removal of a bund which they are alleged to have wrongfully raised so as to divert water flowing into the Plaintiff's tank. The plaint was filed on 22nd July 1932, and with it a petition for the appointment of a Commissioner to inspect the locality and to make a plan. Notice., was ordered to go to the defendants and was made returnable on 23rd August 1932. The notice was actually served on defendants on 17th August 1932.
In the meanwhile on 29th July 1932, a week rafter the first petition, the plaintiff put in another petition for the issue of a commission emergently, alleging that if the Court should pass orders after service of notice on the defendants it would cause delay; and that owing to the changes made by the rainfall the defendants would get the opportunity of including a certain channel in their lands.
The Court granted the petition and issued a warrant to the Commissioner returnable on 3rd August 1932. The Commissioner completed his inspection on 31st July 1932 and signed his report on 2nd August 1932. No notice was given to defendants of this second petition, nor was any notice given to them of the issue of the Commission, nor had they any opportunity afforded to them of being present when the Commissioner made his inspection. The whole thing was done behind their back. It must be remembered that R. 10 (2) of O. 26, Civil Procedure Code, makes the report of the Commissioner evidence in the suit. Therefore, it is of importance that the report should not be founded on representations made to the Commissioner or on matters brought to his notice by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a Commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that I think this alone would be sufficient to justify the interference of a Revision Court. But there is R. 18 of O. 26 which says that when a Commission is issued under this order the Court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Sub-R. 2 of R. 18 says that where all or any of the parties do not so appear the Commissioner may proceed in their absence. Rule 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. There is no power in the Court to issue an exparte commission. It has been suggested that an emergency excused the order of the District Munsif. I think that there was no more emergency on the 29th July than there was on the 22nd July when the first petition was filed; but an emergency could not absolve the District Munsif from complying with R. 18.
A point has been raised by Mr. Govindarajachari that the Revision Petition was filed more than 90 days from the date of the District Munsif's order dated 29th July 1932, though it was filed within that period from the date of the order made by the Munsif on the objections filed by the defendants to the validity of the Commissioner's report. He argued that the order of the 29th July was a final order against which the Respondents could and should have brought a revision petition within the 90 days prescribed by R. 41-A of the Appellate Side Rules. But R. 41-A, does not lay down an absolute bar of limitation. Delay may be excused by the Court; and I think it would be a good ground for excusing the delay that, the defendant took the very proper course of endeavouring by his objection to the Commissioner's report to get the Munsif to revise his order. Apart from any question of excusable delay, I think that it was open to the defendant to bring his revision petition against the order of the Munsif confirming after objection, the validity of his order issuing the commission.
The revision petition is allowed with costs throughout. The Munsif's order of the 29th July will be set aside, with the result that the Commissioner's plan and report fall with it.
N. R. R.Petition allowed.
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