MANU/TN/0370/1953

Equivalent Citation: AIR1953Mad717, 1953-66-LW418

IN THE HIGH COURT OF MADRAS

Civil Revn. Petn. No. 2363 of 1952
Decided On: 16.12.1952
Appellants: In Re: P. Moosa Kutty

Hon'ble Judges/Coram:
Ramaswami, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.P. Ramakrishna Iyer, Adv.
Case Note:
Civil - appointment of commissioner - Order 26 Rules 9 and 10 of Code of
Civil Procedure, 1908 - revision petitioner challenged appointment of
commissioner without notice - Court appointed person as commissioner for
local investigation in any matter and report thereon to Court - on account
of urgency commission application had been filed with plaint and before
issue of summons - Rule 9 did not provide for presence of parties when
commission is issued - revision petition dismissed.

JUDGMENT
Ramaswami, J.
1 . 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 Order 26, Rule 9, C. P. C.
2. 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 8-10-1952 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 Order
26, Rule 9 , C. P. C., 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.
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

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 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 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 Order 26, Rule 18, C. P. C. 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.
5. The short point for our consideration is the scope of Order 26, Rule 18, C. P. C.
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. Order 26, Rule 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.
6. 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 MANU/WB/0256/1932 : AIR
1933 Cal 475. The Court has a discretion to order local investigation or not; it is not
bound to order it in all cases; -- 'Ram Brichh v. Muhammad Sahib'
MANU/BH/0293/1933 : AIR 1933 Pat 542. 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, Civil P. C. 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.
7. 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.

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 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', MANU/NA/0134/1938 :
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 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.
8 . 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. Rule 9 enables the Court to appoint commissioners for local investigation;
Rule 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. Rule 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 pleadings, affidavits and other
documents of a suit form part of the record of that suit --'Vithaldas Damodar v.
Lakshmidas Harjiwan' MANU/MH/0023/1942 : AIR 1942 Bom 266 (D) 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.
Rule 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 Rule 15 which regulates the expenses of commission to be paid
into Court. Rule 16 defines the powers of commissioners including examination of
parties, documents, inspection, etc. Rule 17 provides for attendance and examination
of witnesses before Commissioners and then we come to Rule 18 which, to enable
the commissioner to do all these things, enjoins upon the Court at the 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.
9. The examination admittedly of this defendant by the commissioner shows that the
order itself contained a direction as required by Rule 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
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.
1 0 . 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

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 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' MANU/BH/0039/1917 : AIR 1917 Pat
278 (F) and -- 'Sitarama v. Ramprasad Ram', AIR 1915 Cal 280 (G). It is within the
discretion of a Judge to accept the report of Commissioner: -- 'Sone Kuar v.
Baidyanath' MANU/BH/0004/1926 : AIR 1926 Pat 462 (H) -- 'Jadavendra v. Gajendra
Naraindas', AIR 1919 Cal 946 (I). 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. 'Jnanda Sundari Rai v. Pramada
Sundara Rai MANU/WB/0213/1933 : AIR 1934 Cal 116 . The person behind whose
back the Commissioner has been appointed is entitled to cross-examine him.
'Ramnath Ramakrishna v. Wasudeo', MANU/NA/0031/1945 (K). Though under Order
26, Rule 10 the Commissioner's report forms part of the record and it is incumbent
on the Court to consider the contents -- 'Venkatarama Aiyar v. Ponnusami Padayachi
MANU/TN/0469/1935 : AIR 1935 Mad 918 .
11. Commissioner's report does not fall under Section 35, Evidence Act, and as it can
be proved only by examining writer or witness. 'Ibrahim Beg v. Aziman', AIR 1930
Oudh 102 (M). 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', AIR
1933 Sind 327 (N). 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', 1944 All W R Rev 18
(O). 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.
12. 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 -- 'Latchan Naidu v.
Rama Krishna Ranga Rao', 40 Law Weekly 358 (P), 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 Rule 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
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.
1 3 . 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 as agreeing with the interpretation of Rule
18 of Order 26, C. P. C. by Cornish J. But it is unnecessary for the disposal of this

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 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 (Mad) (Q)'.
That judgment has no relevance because the case therein arose under Order 39, Rule
7 corresponding to Section 499, old Civil P. C. Raghava Rao J. held that an
interlocutory order under Order 39, Rule 7 can be made only after notice to the other
side because Rule 8 says that an application by the plaintiff for an order under Rule 6
or Rule 7 may be made after notice to the defendant at any time after institution of
the suit. Rule 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 Section 499 of the old Code in --'Sengotha v.
Ramaswami', 7 Mad 24l (R), by Turner C. J. and Hutchins J. wherein it was held:
An application for an order under Section 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 Rao J.
the decision in -- 'Totaram Icharam v. Dattu Mangu' MANU/MH/0126/1942 : AIR 1943
Bom 143 (S), wherein an opposite view was held by Beaumont C. J. and Wassoodew
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 Order 39, Rule 7, can always appoint a receiver or grant an
injunction 'ex parts' 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 Rule 8 of Order
39, C. P. C. The notice to be given under Order 26, Rule 18 is a notice after the issue
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 foot of the decision in
MANU/TN/0246/1933 : AIR 1934 Mad 548' 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 Order 26 or Order 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.

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 1 7 . 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 be 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.
Lekhasingh' MANU/BH/0063/1946 : AIR 1946 Pat 419 (V); -- 'Attu Hussain v. Jai
Narain' MANU/BH/0246/1948 : AIR 1949 Pat 307 (W); -- 'Tirtha Naick v. Lal
Sadanand Singh' MANU/OR/0022/1952 : AIR 1952 Ori 99 (X) -- 'Khanderao Gaekwar
v. Commissioner of Income Tax, Bombay' MANU/MH/0025/1948 : AIR 1949 Bom 17
(Y); -- 'Jivaji Annaji v. Hanmant Ramchandra' MANU/MH/0019/1950 : AIR 1950 Bom
360 (FB) (Z) and -- 'Govindarajulu v. Balu Ammal' MANU/TN/0054/1952 : AIR 1952
Mad 1 (Z1).
18. 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 Penzsnce in -- 'Kendall v. Hamilton', (1879)
4 AC 504 (Z2) cited with approval in the Civil Justice Committee Report 1924-25
page xxviii. The procedure is but the machinery of the law after all, the channel and
means whereby law is administered 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.
19. In the result, the civil revision petition is dismissed.

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