P. Moosa Kutty, In Re.

JUDGMENT

This civil revision petition arises out of an order made by the learned District Munsif, Parappanangadi, in I.A No. 1363 of 1952 in O.S No. 245 of 1952 filed under O. 26, R. 9, Civil Procedure Code.

The facts are: P. Amarankutti of Kodinhi Amsom filed the suit for a declaration that he is entitled to a right of easement to pass through a specified portion of Moosakutty's paramba to his house close by and that he has been in possession of the alleged pathway and that this Moosakutty has demolished a bund on the pathway and for an injunction and damages. The plaintiff filed along with his plaint an application on 8th October, 1952 for the issue of a commission to make a report about the condition of the pathway and the damages alleged by him to the bund. This application for the appointment of a Commissioner for local investigation under O. 26, R. 9, Civil Procedure Code, was ordered ex parte and a Commissioner, an Advocate of the Court, was appointed to prepare a plan of the plaintiff's as well the defendant's property and to make a report of what he saw concerning the alleged demolition of the bund. This order was passed on 9th October, 1952 and the Commission was made returnable on 28th October, 1952 and the commission warrant was ordered to issue on the plaintiff depositing Rs. 25. On 12th October, 1952 at 9 am the Commissioner went to the spot and he enquired among others this defendant Moosakutty and then drew up a plan and submitted his report regarding the condition of the bund as called for. On receipt of this report final order was passed on 28th October, 1952 “Commission issued returned executed. Petition closed.” The defendant after appearing in Court obtained copies of the application by the plaintiff and the plan and report of the Commissioner. This plan and report are obviously very inconvenient from the point of view of this defendant. Therefore he has come forward with this revision petition stating that if the plan and report filed by the Commissioner are used in evidence in the case, he would be greatly prejudiced as they are conesided and that the order of the learned District Munsif appointing the Commissioner without notice to him and hearing him, is illegal and opposed to the provisions of O. 26, R. 18, Civil Procedure Code. Therefore, he has filed this revision petition against that order which has been executed and what is really more important for him is to get a stay of the trial of the suit on that pretext, obviously to protract the proceedings and wear out the opposite side.

The short point for our consideration is the scope of O. 26, R. 18, Civil Procedure Code, and whether it bears out the interpretation which is sought to be placed upon it by the learned Advocate, Mr. K.P Ramakrishna Aiyar. In the Civil Procedure Code there are two provisions for issuing commissions for local investigation, viz., when the suit is instituted and after the suit is instituted. O. 26, R. 9 states:

“In any suit in which the Court deems a local investigation, to be requisite or proper for the purpose of elucidating any matter in dispute or of ascertaining………damages…. the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.”

The object of this local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its very peculiar nature can only be had on the spot: Amulyakumar v. Anandacharan(1). The Court has a discretion to order local investigation or not: it is not bound to order it in all cases: Ram Brick v. Muhammad Sahib(2). In any event, an application under this rule must be made before the case is closed. The form prescribed for commission for local investigation is set out in form No. 9 in Appendix H, of the Civil Procedure Code. The form states:

“Whereas it is deemed requisite, for the purpose of this suit, that a commission for………should be issued you are hereby appointed Commissioner for the purpose of……………Process to compel the attendance before you of any witnesses, or for the production of any documents whom or which you may desire to examine or inspect, will be issued by any Court having jurisdiction on your application.

A sum of Rs. ………being your fee in the above is herewith forwarded.

This issue of commission can be made ex parte and in fact it stands to common sense has often got to be made ex parte. It will be borne in mind that this application has been filed along with the plaint and before the issue of suit summons. This application is made on account of urgency. If a commission is not going to be issued until the defendant appears most often there will be no point in taking out a commission because the object of the commission itself would be lost and incriminating circumstances would be obliterated. The appointment of a Commissioner for local investigation in such cases would be an instance of locking the stable door after the horse had been stolen. R. 9 does not provide for the presence of the parties when a commission is issued and merely leaves it to the discretion of the Court. But interests of justice require that such Acts should not be done without notice to one of the parties: Jameshed v. Kunjilal(3). Then in the instant case the Commissioner has as a matter of fact made the local investigation in the presence of this defendant and has also enquired of him. In fact, this is what in contemplated under O. 26, R. 18, which states:

“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;

(2) Where all or any of the parties do not so appear the Commissioner may proceed in their absence.”

This provision has been made because in so far as commissions for local investigations are concerned, the following are the relevant and cogent further provisions. R. 9 enables the Court to appoint Commissioners for local investigation; R. 10(1) regulates the procedure of the Commissioner, viz., that after such local inspection as he deems necessary and after reducing to writing the evidence taken by him shall return such evidence, together with his report in writing signed by him to the Court. R. 10(2) lays down that the report of the Commissioner and the evidence taken by him (but not the evidence without the report shall be evidence in the suit and shall form part of the record in the same way as pleading, affidavits and other documents of a suit form part of the record of that suit [Vithaldas Damodar v. Lakshmidas Harjiwan] and that the Court or with the permission of the Court any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him etc. R. 10(3) makes provision for the making of further enquiry as the Court thinks fit if it is dissatisfied with the proceedings of the Commissioner. Then we come to the general provision in R. 15 which regulates the expenses of commission to be paid into Court. R. 16 defines the powers of Commissioners including examination of parties, documents, inspection, etc. R. 17 provides for attendance and examination of witnesses before Commissioners and then we come to R. 18 which, to enable the Commissioner to do all these things, enjoins upon the Court at time the commission is issued under this order to direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders. Finally, it is laid down that where all or any of the parties do not so appear, the Commissioner may proceed in their absence. The examination admittedly of this defendant by the Commissioner shows that the order itself contained a direction as required by R. 18 and that is why the petitioner has been scrupulously careful not to file any of the documents for which he has secured copies. The net result of this analysis is that there is no provision under O. 26, R. 9, C.P.C, that a commission could be issued only after notice has been issued to the defendant and secondly, that R. 18 cannot bear the interpretation which is sought to be put upon it by the learned Advocate for the petitioner and that as a matter of fact in this case the defendant had notice and participated in the Commissioner's enquiry.

The next grievance of this petitioner is that the plan and report of the Commissioner cannot be admitted in evidence. In regard to it, this objection is obviously made without fully comprehending the scope of the relevant provisions of R. 10 which has been reproduced above. The Commissioner's report does not automatically become evidence and the parties are entitled to object to the Commissioner's report and prove their objections by examining the Commissioner or other witnesses: Harcharan Das v. Danpat Mal Dewarchand, Ajodhyaprasad Singh v. Kamal Narasin Singh, and Sitarama v. Ramprasad Ram(4). It is within the discretion of a Judge to accept the report of a Commissioner: Sone Kuar v. Baidyanath(5), Chowdhury Jadavendra v. Gajindra Naraindas(6). The Commissioner's report and the opinion he expressed on the evidence is merely a piece of evidence to be considered by the Judge. It does not become ipso facto evidence. In Jnanda Bandari Rai v. Pramada Sundara Rai(7) The person behind whose back the Commissioner has been appointed is entitled to cross-examine him. In Ramanatha Ramakrishna v. Wasudeo(8). Though under O. 26, R. 10, the Commissioner's report forms part of the record and it is incumbent on the Court to consider the contents [K.S Venkatarama Aiyar v. Ponnusami Padayachi]. Commissioner's report does not fall under S. 35 of the Indian Evidence Act and as it can be proved only by examining writer or witness, Ibrahim Beg v. Azima. It is the duty of the Judge to consider every objection of fact or of law made by the parties to the report, to show the nature of the objection in his judgment and his grounds for allowing or dismissing it. Arjandas v. Gangaram. Therefore, it is open to this defendant to show that the report of the Commissioner is incorrect and that it is not entitled to credence. After all it is the facts contained in a Commissioner's report and proved to be correct which count as evidence and not his opinion, Sarada Prasad v. Ram Bharas. The petitioner cannot seek to short-circuit it by alleging that this investigation was made on an emergent order passed ex parte. Therefore, I see no substance whatsoever in the revision petition.

Before parting with it I shall refer to the decisions relied upon by the learned Advocate for the petitioner. The first decision relied upon is in Lachan Naidu v. Rajah Saheb Maherban wherein Cornish, J. held on the facts in that case that no emergency excused the order of the District Munsif and did not absolve the District Munsif from complying with R. 18. It is unfortunate that the head-note of the report has made this observation much wider than what was really meant by stating that there is no power in the Court to issue an ex parte commission and even an emergency cannot absolve the Court from complying with R. 18. Then the learned Judge held that R. 18 of O. 26 C.P.C 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. I have pointed out that in the instant case the defendant had notice of the appointment of Commissioner and actually attended his investigation by him. Apart from that, in that case when an application was made along with the plaint for the appointment of a Commissioner for local investigation, notice was ordered to the defendants and notice was actually served on the defendants and before they could appear in Court another application was filed 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. It was therefore held by Cornish, J. that this second application was ordered behind the back of the defendants. This is not the case here. I must not however be understood as agreeing with the interpretation of R. 18 of O. 26, C.P.C by Cornish, J. But it is unnecessary for the disposal of this civil revision petition to embark further on this matter. The second decision relied on is an unreported judgment of Raghava Rao, J. in C.R.P No. 627 of 1950. That judgment has no relevance because the case therein arose under O. 39, R. 7 corresponding to S. 499 of the old C.P.C Raghava Rao, J. held that an interlocutory order under O. 39, R. 7 can be made only after notice to the other side because R. 8 says that an application by the plaintiff for an Order under R. 6 or R. 7 may be made after notice to the defendant at any time after institution of the suit. R. 8(2) says that an application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance. There is also a Bench decision of this Court under S. 499 of the old code in Sangotha v. Ramaswami, by Turner, C.J and Hutchins, J. wherein it was held:

“An application for an order under S. 499 can only be made by a plaintiff after the summons has been served and after reasonable notice of the intention to apply for the order has been given in writing to the defendant. The term ‘may’ must be read with the words ‘at any time’ and does not import that it is competent to a plaintiff to apply before service of summons, or to evade the condition of notice.”

The Advocate for the respondent in that case brought to the notice of Raghava Raa, J. the decision in Totaram Icharam v. Dattu Mangu, wherein an opposite view was held by Beaumont C.J and Wassodew J. viz., that in cases in which it is necessary to take action promptly in order to prevent property from being made away with by the defendant, the Court, before proceeding under O. 39, R. 7, can always appoint a receiver or grant an injunction, ex parte and that the appointment of commissioners, which was made in that case ex parte was really less detrimental to the defendants than would have been the appointment of the same persons as receivers. This decision does not apply to the case on hand wherein we have no provision corresponding to R. 8 of O. 39, C.P.C The notice to be given under O. 26, R. 18 is a notice after the issue of commission that such a commission has been issued. The third decision is an unreported judgment of Basheer Ahmed Sayeed J. in C.R.P No. 997 of 1951. Therein on the facts of that case it was held that the report of the Commissioner should not form part of the record and made evidence in the suit but that there was no objection to that Commissioner being examined as a private individual by the plaintiff as one who had seen the plot of land at that particular time and that it was open to the trial Court to appoint a fresh Commissioner. The fourth case is an unreported decision of Venkatarama Aiyar, J. in C.R.P No. 398 of 1952. The facts were: O S No. 181 of 1951 District Munsif Court, Vridhachalam was filed for an injunction restraining the defendants from interfering with their taking water from a well situated in the land of defendants. The plaintiffs filed I.A No. 708 of 1951 for the appointment of a Commissioner to inspect the well and the channels through which the water flows from the well and to submit a plan and report. This petition was ordered ex parte. It was contended before Justice Venkatarama Aiyar on the foot of the decision in Lachan Naidu v. Raja Saheb Mahorban, that the Commissioner should have been appointed after notice to defendants It is not clear from the order whether the appointment of the Commissioner was under O. 26 or O. 39 It is also seen that the defendants had themselves filed an application for a duly qualified Commissioner being appointed. In these circumstances the order of the lower Court was set aside. The facts of the instant case are quite different and therefore these decisions do not apply here. I need not point out that a decision is only an authority for what it actually decides; it cannot be quoted for a proposition that may seem to follow from it. Every judgment must be read applicable to the particular facts proved or assumed to be proved; the generality of expressions that may found cannot be intended to be expositions of whole law but must be regarded as governed or qualified by the particular facts of the case in which such expressions occur. Deonath Sahay v. Lakasingh, Hussain v. Agarwala, Thirtha Naick v. Lal Sadanaud Singh, Prince Khanderao Gakowar v. Commissioner of Incometax, Bombay Jiv ii Annaji v. Hannant Ramchandra, and Govindarajulu v. Balu Ammal. In addition, where the language of an order is clear this exploration into the wilderness of single instances (to quote Tenyson) is a wholly supererogatory task and in the interpretation of these procedural provisions regard must be had to the fundamental principles laid down by Lord Penzance in Kendall v. Hamilton(9), cited with approval in the Civil Justice Committee Report 1924-1925, page xxviii:

“The Procedure is but the machinery of the law after all, the channel and means whereby law is adminstered and justice reached. It strangely departs from its proper office when in place of facilitating it is permitted to obstruct, and even extinguish the legal rights and is thus made to govern where it ought to subserve.”

Therefore, these decisions do not substantiate the contentions of this petitioner.

In the result, the civil revision petition is dismissed.

V.C.S