1952 (12) TMI 49 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the ex parte appointment of a commissioner under Order 26, Rule 9, C.P.C.
2. Admissibility of the commissioner's plan and report as evidence.
3. Compliance with procedural requirements under Order 26, Rule 18, C.P.C.

Detailed Analysis:

1. Legality of the ex parte appointment of a commissioner under Order 26, Rule 9, C.P.C.

The primary issue is whether the appointment of a commissioner without notice to the defendant is legal under Order 26, Rule 9, C.P.C. The court noted that the plaintiff filed an application for the issue of a commission along with the plaint, and the order was passed ex parte due to the urgency of the situation. The court emphasized that "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." The court further stated that "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." The court concluded that there is no provision under Order 26, Rule 9, C.P.C., that a commission could be issued only after notice has been issued to the defendant.

2. Admissibility of the commissioner's plan and report as evidence.

The defendant contended that the plan and report of the commissioner should not be admitted as evidence. The court clarified that "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." The court cited various precedents, such as "Harcharan Das v. Danpat Mal, AIR 1917 Lah 57" and "Ajodhyaprasad Singh v. Kamal Narasin Singh, AIR 1917 Pat 278," to support this view. The court concluded that it is within the discretion of a judge to accept the report of the commissioner and that the report and the opinion expressed by the commissioner are merely pieces of evidence to be considered by the judge.

3. Compliance with procedural requirements under Order 26, Rule 18, C.P.C.

The defendant argued that the appointment of the commissioner without notice to him was illegal and opposed to the provisions of Order 26, Rule 18, C.P.C. The court noted that Rule 18 requires that "the parties to the suit shall appear before the commissioner in person or by their agents or pleaders." However, the court found that in this 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." The court concluded that the defendant had notice of the appointment of the commissioner and participated in the commissioner's enquiry, thereby complying with the procedural requirements of Rule 18.

Conclusion:

The court dismissed the civil revision petition, holding that:

1. The ex parte appointment of a commissioner under Order 26, Rule 9, C.P.C., was legal and justified due to the urgency of the situation.
2. The commissioner's plan and report do not automatically become evidence but are pieces of evidence to be considered by the judge, and the parties have the right to object and examine the commissioner.
3. The procedural requirements under Order 26, Rule 18, C.P.C., were met as the defendant had notice and participated in the commissioner's enquiry.