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TMI Blog1952 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. This order was passed on 9-10-1952 and the Commission was made returnable on 28-10-1952 and the commission warrant was ordered to issue on the plaintiff depositing Rs. 25. On 12-10-1952 at about 9 a.m. 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 28-10-1952 "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. 4. 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 one-sided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Rule 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: -- 'Jamshed Karimuddin v. Kunjilal Harsukh', AIR 1938 Nag 530 (C). 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 is contemplated under Order 26, Rule 18, which states: "Where a commission is issued under this order the Court shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as secured copies. The net result of this analysis is 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 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. 10. 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', AIR 1917 Lah 57 (E); -- 'Ajodhyaprasad Singh v. Kamal Narasin Singh' AIR 1917 Pat 278 (F) and -- 'Sitarama v. Ramprasad Ram', AIR 1915 Cal 280 (G). It is within the discretion of a Judge to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy cannot absolve the Court from complying with Rule. 18. Then the learned Judge held that Rule 18 of Order 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. 13. 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 3. that this second application was ordered behind the back of the defendants. This is not the case here. 14. I must not, however, be understood a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of commission that such a commission has been issued. 15. The third decision is an unreported judgment of Basheer Ahmed Sayeed J, in 'C. R. P. No. 997 of 1951 (T)', 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 (U)'. The facts were : O. S. No. 181 of 1951, District Munsif Court, Virdhachalam, 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. The petition was ordered 'ex parte'. 16. It was contended before Justice Venkatarama Aiyar on the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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