Sunday, 25 December 2016

Leading Judgment on issue and execution of commission

 The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal


position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.


(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition


precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.



(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

   

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

   PRESENT:

     MR.JUSTICE P.R.RAMACHANDRA MENON
                                  &
     MR. JUSTICE P.SOMARAJAN

     15TH DAY OF DECEMBER 2016

                      RSA.No. 733 of 2004 

            FRANCIS ASSISSI, 
Vs

          SR.BREESIYA
     
      

    



     This Second Regular Appeal is preferred against the

decree and judgment of Additional District Court, Thrissur

in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in

the original suit in   O.S. 2295/1988 on the file of the

Munsiff Court, Thrissur. The appeal had initially come up

before a learned Single Judge of this Court and it was

placed before us doubting the legal position laid down by a

Division Bench of this Court in Swami Premananda

Bharathi v. Swami Yogananda Bharathi [(1985 KLT

144). Earlier,    a  single  bench   of   this  Court    in

Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed

doubt about the legal proposition laid down in the Swami

Premananda Bharathi's case but did not opt to refer the

issue to a Division Bench. In Hydrose V. Govindankutty,


[(1981) KLT 360]          M.P.Menon.J. took the view that

without setting aside the report submitted by a finger

print expert, another finger print expert can be

appointed.       Another decision drawn in Sivaraman v.

Narayanan [(1986) KLT 578] Varghese Kalliyath .J.

took the view that the court has jurisdiction to appoint

the same Commissioner which he omitted to note in the

report already submitted.       So the question came up

whether it is permissible to have a second report of

commission without wiping out the earlier one and

doubted the legal preposition laid down in Swami

Premananda Bharathi's case           (supra).  Hence the

matter placed before us.

      2.         Before going into the reference, it is

worthful to narrate the factual sequences involved in the

case. The suit in O.S. No. 2295/88 on the file of Principal

Munsiff, Thrissur, was filed for recovery of possession on

the strength of title, mandatory injunction and for

damages. There are two items of property scheduled in


the plaint, which were originally belonged to Chungath

Ouseph, by virtue of sale deed of the year 1954. It was

later on purchased by the plaintiff on 23.11.1988 from

the son of Chungath Ouseph by name Jose. Item No.1

property is the only access to Item No.2 of plaint

schedule. Its eastern end starts from the municipal road

lying north-south direction. A gate was installed at the

entrance by its previous owner. The property lying on

either side of Item No.1 is owned and possessed by the

defendant. When they attempted to demolish the gate, it

has necessitated the institution of the present suit, by

the plaintiffs for recovery of possession, for damages,

for permanent prohibitory injunction and mandatory

injunction to remove the pipeline drawn through Item

No.1 property.

      3.         The defendant contested the suit alleging

that the plaint Item No.1 is the way used by the convent

as means of access. The defendant has purchased the

properties in the year 1960. The school compound of the


 defendant is having an extent of 2 acre 91 cents, which

is situated on the southern side of convent property. But,

the extent of school compound is mistakenly shown in

the document. There was a wooden gate in front of their

property and it was replaced with an iron gate in the year

1968 by the defendants. A pipeline was drawn across

the plaint Item No.1 property.      Telephone and electric

lines were also drawn through the disputed property.

The disputed road is the only way leading to the convent

building which faces towards south and the defendants

are in exclusive possession and ownership of plaint

schedule Item No.1. Even if the plaintiff has any right,

title or interest over the property, the same is stood as

lost by adverse possession and limitation. Hence, they

pressed for dismissal of the suit.

      4.         An additional written statement was also

filed disputing the title of plaintiff over the plaint

schedule Item No.1 property.     Plaint schedule Item No.1

is not a property used by the plaintiff as means of access.



The claim of damage is also disputed.       The structures

existing in Item No.1 were in existence right from the

year 1949.

      5.         A second additional written statement was

also filed disputing the description of Item No.1 property

after its amendment.       The pipeline was drawn long

before the suit and it is known to the plaintiff.

      6.         The Trial Court dismissed the suit by its

judgment dated 20.02.1999 against which appeal in A.S.

No.280/1999 was filed before the Additional District

Court, Thrissur and by impugned judgment dated

04.12.2003 the appeal was dismissed against which this

Regular Second Appeal was preferred.

      7.         Before going into the impugned judgment

and decree, we would like to have an understanding with

respect to the actual impact of Order XXVI CPC and the

Scheme thereof.

      8.         Going by Order XXVI, it is clear that its

Rules are regulated in accordance with the purpose in


which a commission could be issued viz., (1) to examine

witnesses. (2) for local investigation (3) for scientific

investigation, performance of ministerial act and sale of

movable property (4) to examine accounts and (5) to

make partitions.      Rules 1 to 14 are regulated under

different     compartments,    under     Order   XXVI,    in

accordance with its purpose viz., Rules 1 to 8

incorporated for the purpose of examining the witnesses,

Rule 9 & 10 for the purpose of local investigations, Rule

10 A, 10B and 10 C for the purpose of commissions for

scientific investigation, performance of ministerial act and

sale of movable property (inserted by the amendment

Act of 104 of 1976 with effect from 1.2.1977), Rules 11

& 12 for examining       accounts, and Rules 13 & 14 for

making partitions. Rule 15 to 18 B are general provisions

applicable to commissions issued for various purposes.

Rule 19 to 21 deals with issuance of commission at the

instance of foreign tribunals and High Courts.

      9.         Going by the above said scheme, the



legislature has in its wisdom given headings bifurcating

Rule 1 to 15 in Order XXVI in accordance with their

purposes. The requirements are different which is well

evident from a joint reading of the various Rules 1 to 15

especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule

10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are

extracted below for reference.

                            Order XXVI

         Commissions to examine witnesses

         1..........

         2..........

         3..........

         4..........

         Rule 4A. Commission for examination of

         any person resident within the local

         limits of the jurisdiction of the court.-

         Notwithstanding anything contained in these

         rules, any court may, in the interest of justice

         or for the expeditious disposal of the case or

         for any other reason, issue commission in any

         Suit for the examination, on interrogatories or

         otherwise, of any person resident within the



         local limits of its      jurisdiction, and the

         evidence so recorded shall be read in

         evidence.

         5............

         6...........

         Rule    7.   Return of commission with

         depositions     of   witnesses.-      Where     a

         commission has been duly executed, it shall

         be returned, together with the evidence taken

         under it, to the court from which it was

         issued, unless the order for issuing the

         commission has otherwise directed, in which

         case the commission shall be returned in

         terms of such order; and the commission and

         the return thereto and the evidence taken

         under it shall (subject to the provisions of rule

         8) form part of the record of the suit.


         Rule 8. When depositions may be read in

         evidence.-      Evidence    taken     under     a

         commission shall not be read as evidence in

         the suit without the consent of the party

         against whom the same is offered, unless--


         (a) the person who gave the evidence is

         beyond the jurisdiction of the court, or dead

         or unable from sickness or infirmity to attend



         to be personally examined, or exempted from

         personal appearance in court, or is a person in

         the service of the Government who cannot, in

         the opinion of the court, attend without

         detriment to the public service, or


         (b) the Court in its discretion dispenses with

         the proof of any of the circumstances

         mentioned in clause (a), and authorises the

         evidence of any person being read as

         evidence in the suit, notwithstanding proof

         that the cause for taking such evidence by

         commission has ceased at the time of reading

         the same.


         Commissions for local investigations


         9.......

         10 (1)..........

         Rule 10(2)Report and depositions to be

         evidence      in  suit--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; but 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 or mentioned in his

         report, or as to his report, or as to the

         manner     in    which he   has    made      the

         investigation.


         Rule    10(3)      Commissioner     may       be

         examined in person--Where the court is for

         any reason dissatisfied with the proceedings

         of the Commissioner, it may direct such

         further inquiry to be made as it shall think fit.




      Commissions for scientific investigation,

    performance of ministerial act and sale of

                     movable property


         10A(1) .............

         10A(2) The provisions of rule 10 of this Order

         shall, as far as may be, apply in relation to

         Commissioner appointed under this rule as

         they apply in relation to a Commissioner

         appointed under rule 9.

         10B(1) .............

         10B(2) The provisions of rule 10 of this Order

         shall apply in relation to a Commissioner

         appointed under this rule as they apply in



         relation to a Commissioner appointed under

         rule 9.

         10C(1) ...........

         10C(2) The provisions of rule 10 of this Order

         shall apply in relation to a Commissioner

         appointed under this rule as they apply in

         relation to a Commissioner appointed under

         rule 9.

         10C(3)......


           Commissions to examine accounts

         11.........

         12..........

         Rule 12(2)Proceedings and report to be

         evidence--Court       may      direct further

         inquiry--The proceedings and report (if any)

         of the Commissioner shall be evidence in the

         suit, but where the court has reason to be

         dissatisfied with them, it may direct such

         further enquiry as it shall think it.




           Commissions to make partitions

         13..........

         14(1).........

         Rule 14 (2)The Commissioner shall then

         prepare     and   sign    a    report or   the


         Commissioners (where the commission was

         issued to more than one person and they

         cannot agree) shall prepare and sign separate

         reports appointing the share of each party

         and distinguishing each share (if so directed

         by the said order) by metes and bounds. Such

         report or reports shall be annexed to the

         commission and transmitted to the Court; and

         the Court, after hearing any objections which

         the parties may make to the report or reports,

         shall confirm, vary or set aside the same.


         Rule 14(3) Where the court confirms or varies

         the report or reports it shall pass a decree in

         accordance with the same as confirmed or

         varied; but where the court sets aside the

         report or reports it shall either issue a new

         commission or make such other order as it

         shall think fit.

                                        (emphasis supplied )




      10. Rule 4A was not in the Act till it was inserted

by CPC (Amendment) Act 46 of 1999 with effect from

1.7.2002 enabling and empowering the court to issue a

commission in the interest of justice, for expeditious


disposal or on any other reason.

      11.Incidentally, another question came up for

consideration as to the applicability of Rule 8 of Order

XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999

with effect from 1.7.2002. Rule 8 empowers the court to

issue a commission for examination of person only on

satisfying the reason embodied under Clause (a) of Rule

8. By the insertion of Rule 4A, wide discretionary power

is invested with the court in the matter of issuance of

commission for examination of any person on the ground

of "interest of justice or for expeditious disposal or any

other reason", by which the restrictions imposed under

Rule 8 of Order XXVI CPC are taken away, virtually

making Rule 8 redundant. We have also taken note of

Rule 7 of Order XXVI wherein the evidence taken shall

"subject to the provision of Rule 8" form part of the

record of the suit.      The expression subject to the

provision of Rule 8 " was inserted by the Act of 104 of

1976 with effect from 1.2.1977 prior to the incorporation



of Rule 4A by the Act 46 of 1999 with effect from

1.7.2002.      Since Rule 8 became redundant it has no

application in the matter of Rule 7 of Order XXVI.

      12.        The     expression  "shall  be   read    in

evidence" incorporated in Rule 4A, the expression "shall

not be read as evidence" incorporated in Rule 8, the

expression "shall be in evidence in the suit and shall form

part of the record" engrafted in sub rule 2 of Rule 10,

the expression "shall be in evidence in the suit" as

incorporated in sub rule 2 of Rule 12 and the expression

"shall confirm or vary or set aside" as incorporated in sub

rule 2 of Rule 14 would clearly show that the requirement

for admitting the report of the Commissioner either on

record or in evidence under Rules 4A, 8, 10(2) and (3),

12 (2) and 14(2) are different. In Rule 14 (2) nothing

mentioned whether it will form part of record or

evidence. But says that the court can confirm or vary or

set aside the report on hearing the objections of the

party concerned. Different yardsticks were applied in the



matter of commissioner's report as to whether it would

form part of evidence or part of record based on the

purpose in which the commission could be issued viz.,

six categories made mentioned above.

      13.        Further the power of court in dealing with

the commissioner's report are also differently dealt in

Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).

Rule 8 became redundant by virtue of amendment and

incorporation of Rule 4A to Order XXVI.           What is

mandated in Rule 4A is that the evidence so recorded by

the commissioner "shall be read in evidence".       So the

court is bound to read in evidence what is recorded by

commissioner on examination of witnesses. There is no

provision for setting aside the deposition recorded by the

commissioner or the report submitted by him. It doesn't

say anything about whether it would form part of the

record or evidence in the suit. Sub rule (3) of Rule 14

says that where the Court confirms or varies the report

it shall pass a decree in accordance with the same, but



where the Court sets aside the report or reports, it shall

either issue a new commission or make such other order

as it shall think fit. Going by Sub rule (3) of Rule 14, it is

clear that a commission which was issued for making

partition either be confirmed or be varied or be set aside

as the      case may be by the Court and when it is

confirmed or varied the Court is bound to pass a decree

in accordance with the same but when it is set aside a

second commission can be issued          for which setting

aside of the earlier report is a condition precedent. In

short, setting aside of an earlier report of the

Commissioner for issuing a second commission mandated

only under sub rule 3 of Rule 14 of Order XXVI CPC.

      14.      There is no provision anywhere under Rule 1

to 8 enabling the Court to examine the Commissioner

who prepared the report and recorded the deposition of a

witness/witnesses as the case may be, presumably on

the reason that there is no scope for setting aside the

deposition recorded or the report thereof. If the


examination of witnesses is incomplete or a re-

examination of the witnesses by recalling him is

necessitated after the submission of the first report no

doubt a second commission can be issued for that

purpose. The question of setting aside earlier report of

the commissioner does not arise under Order XXVI Rule 1

to 8, more specifically the commissions which were

issued for examination of persons (witnesses) and the

report and deposition recorded by him.

      15.        There is some slight difference in the

approach made by the legislature in Rule 10(2) and (3)

wherein      it is mandated   that the   report of the

commissioner and the evidence taken by him "shall be

evidence in the suit and shall form part of the record",

but 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 or as to the manner in which he has

made the investigation. Rule 10(3) deals with the power


of the Court to direct further enquiry when there is any

reason to dissatisfy with the proceedings of the

Commissioner. Setting aside of a report or cancelling a

report of Commissioner is conspicuously absent in sub

rule (2) and (3) of Rule 10, but it empowers the Court to

direct "such further enquiry" which stands for a second

enquiry or a subsequent enquiry necessarily through a

second commission.

      16.        The provisions of Rule 10 is made

applicable in relation to a commission appointed under

Rule 10A, 10B and 10C which are dealing with the

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property by virtue of sub rule 2 attached to 10A, 10B

and 10C. So the very same legal position is applicable in

the    matter    of commission     issued  for  scientific

investigation, performance of ministerial act and sale of

movable property under Rule 10A, 10B and 10C and a

second commission is possible without setting aside the


earlier one.

      17.        The very same provision incorporated in

Rule 12(2) of Order XXVI, provides the power to direct

"such further enquiry" when there is reason to dissatisfy

with the report of the commissioner.             A second

commission is possible without setting aside the earlier

one in the matter of examination of accounts through

commission.

      18.        The very similar provision is incorporated

in Rule      12(2) also.   The authority    to set aside

commission's report or to vary the commission's report is

engrafted only in sub rule (2) of Rule 14 which stands for

commission to make partition. On applying a plain

reading and strict interpretation to Rule 1 to 14 to Order

XXVI, the resultant effect is that a report submitted by

the Commissioner can be varied or set aside by the Court

only under Rule 14 sub rule (2) of Order XXVI, which

stands for commission to make partition and it is a

condition precedent for issuing a second commission.


      19.         The general provisions i.e. Rule 15 to 18

(B) of Order XXVI do not say anything about the

examination of Commissioner, or issuance of a second

commission or the requirement of setting aside of first

report.

      20.       Divergent views were expressed by various

High Courts regarding the question whether the earlier

report of the Commissioner should be wiped off before

issuing a second commission.

      21.         The Madras High Court condemned the

practice of appointing successive Commissioners in

Thottama v. C.S. Subramaniyyan (AIR 1922 Madras

219). That decision was rendered in Rule 14 of Order

XXVI CPC.       But going by the decision, it is clear that the

commission was issued not for effecting partition but for

making local investigation and to assess the value of

improvements effected in the mortgaged property.             In

that case three successive Commissions were issued for

the very same purpose viz; for assessing the value of


improvements effected in the mortgaged property. The

said practice of issuing commission one after another was

condemned and deprecated. In that decision it appears

that the mandate under Rule 14 of Order XXVI CPC was

wrongly applied.

      22.       A Division Bench of Madras High Court in

Ambi and another v. Kunhikavamma and others

[(AIR 1929 Madras            661]    considered    both    the

application of Rule 10(3) and Rule 14(3) and discussed

in detail, the scope of "further enquiry" in the following

lines.

              The rule is R. 10(3) and lays down that

       further enquiry may be ordered when the Court is

       for any reason dissatisfied with the proceedings of

       the Commission. It may be noted that there is no

       provision corresponding to that in R.14 (3) under

       which the Court may issue a new commission.

       What is contemplated under R.10(3) obviously is a

       further enquiry by the Commissioner already

       appointed by the Court itself. It may be that where

       the Court is so dissatisfied with the whole

       proceedings of the commissioner that it thinks it

       better to discard the whole record and start afresh,



       such a       procedure would not be contrary to the

       code.      That is the line of argument adopted in

       Thottamma                                                             v.

       Subramaniayyan.................................................

       ........................................................................

       ...........


       Only the decision of the Court that the work had

       been so badly done that it had to be done over

       again would avail to validate the issue of a second

       commission........................................................

       ........................................................................

       ............


         Only if he is of opinion after hearing both sides

       that the report is wholly useless is it open to him to

       discard it and issue a fresh commission to cover the

       same ground, and in that case the report of the

       first commission is as if it had never been and

       would          not         be         evidence            in        the

       case.................................................


       He even issued an order to appoint a third

       commission, whose report no doubt would have

       been dealt with in the same way, and so on ad

       infinitum. This procedure, besides being in our view


       contrary     to    law,    creates     considerable

       embarrassment to us here.

      23.         The said decision, though doesn't say

anything with respect to the requirement to set aside the

earlier one before issuing the second one, the practice of

issuing commission one after another is deprecated.

      24.        Yet another Division Bench of same High

Court in Kunhi Kutti Ali and another v. Mohammad

Haji and others [AIR 1931 Madras 73] took the view

that the earlier commission should be wiped out before

issuing a second commission.        The relevant portion is

extracted for reference.

         "We have in the first place to remark that the

         lower Court should not have issued two separate

         commissions to deal with one and the same

         subject and to treat the reports of both the

         commissioners as evidence in the case.       The

         exact circumstances in which he came to issue

         the second commission do not appear from the

         record that has been placed before us. But the

         second commission should not have been issued,

         unless it was thought that the report of the first

         commissioner was not satisfactory in which case


          the earlier commission should have been wiped

         out altogether and attention should have been

         paid only to what was reported by the second

         commissioner.      Instead of this, the learned

         Subordinate Judge has balanced the report of

         one commissioner against that of the other and

         has expressed a performance for the views of the

         first commissioner. In taking this course, he has

         acted with great impropriety and contrary to

         what is contemplated by O.26.R.10(3)Civil PC."



      25.        A Division Bench of Patna High Court in

Shib Charan Sahu and others v. Sarda Prasad and

another (AIR 1937, Patna 670) took a different view

holding that the first commissioner's report cannot be

wiped off the record. It is held that when a Court issues

a commission but is dissatisfied with the report of the

Commissioner, another commission can be issued but the

earlier one cannot be wiped of the record. The relevant

portion of the judgment is extracted below for reference.

          Commission- Court dissatisfied with report of

          commissioner, can issue another commission-

          Report of first commissioner however cannot be



          wiped out of record.........................................


          When     a Court issues a commission. But is

          dissatisfied with the report of the commissioner

          it is entitled to issue another commission and

          also for its report, but the report of the first

          commissioner cannot be wiped off the record.


          In those judgments, the Madras High Court was

          endeavouring to correct a very bad tendency on

          the part of the Munsifs of the Malabar districts

          who appeared to have got into the habit of

          sending     out  simultaneous       commissions          to

          investigate the same issue of fact and then

          taking all the commissioner's reports into

          consideration and deciding as between these

          various reports which of them was preferable;

          and this habit of sending out commissions

          whether     simultaneous    or     consecutive         had

          become a nuisance which the Madras High Court

          very properly desired to check and put an end

          to. I can find in those judgments no statement

          of a principle such as is contended for in this

          appeal. There is nothing in O.26, R.10, Civil P.C

          to justify such a contention. It is in the power of

          the Trial Court to send out a second or even a



           third commission, and when all the materials

          are before the Court it may at the time of

          delivering judgment attach very little or no

          weight to the first commissioner's report but this

          is very far from saying that this amounts to

          requiring the first report to be wiped out of the

          record and not considered as evidence.



      26.         A single bench of the same High Court

followed the principle         laid down in     Shib Charan

Sahu's case (supra) in the following lines.

          Order XXVI provides that the Commissioner

          appointed under Rule 9 has to return the

          evidence recorded by him together with his

          report in writing signed by him to the Court.

          Sub rule (2) of R.10 of O.XXVI interalia makes

          it clear that the report of the Commissioner

          and the evidence taken by him shall be

          evidence in the suit and shall form part of the

          record. Sub rule (3) authorises the Court to

          direct such further enquiry to be made as it

          thinks fit in case the Court is, for any reason

          dissatisfied with the proceedings of the

          Commissioner. No provision of the Code,

          however, provides for the Commissioner's

          report being taken off the record or not being


           considered as evidence in any circumstances.

          The value to be attached to the report is

          however, a different matter. It is obvious that

          the Court was either not satisfied with the

          proceedings of the first Commission or merely

          because of the statements made by the

          parties on January 16, 1970 the second

          commission was ultimately issued.



      27.         It was held by a Single Bench of this High

Court in Narayan Guptan v. Madhava Menon (1964

KLT 453) that the issuance of a second Commission

without setting aside the earlier one is only an error, or

defect or     irregularity in the proceedings which does not

per se affect the merits of the case.

      28.         In Moidu v. Lekshmi Amma [(1968)

KLT 699] V.R.Krishna Iyer. J. took the view that           a

second commission can be issued only after formally

setting aside the earlier one. The relevant portion of the

said decision is extracted below for reference.

         If a second commission is to be issued under

         such circumstances, the first report must be



          formaly set aside. A conscious irregularity need

         not be committed at a stage where the decree

         has not been passed, when it can be set

         right..............................................................

         .......


       He rightly relies upon Order xxvi R. 18, Civil

       Procedure Code, and the ruling reported in

       Achuthan v. Kunhipathumma (1967 KLT. 326)

       wherein a Division Bench of this Court has held

       that it is a principle of natural justice that it is

       only evidence taken in the presence of a party

       that can be used against him. For this reason,

       according to their Lordships, Order XXVI R. 18

       CPC. provides for an opportunity being given to

       the     parties     to     be     present        before       the

       commissioner in the property at the time of his

       inspection. Order XXVI R. 18, CPC. enshrining as

       it does a wholesome principle of natural justice,

       is treated as imperative. Under Order XXVI R. 18

       cpc a direction has to be issued by the Court to

       the parties before the issue of a commission and

       this direction should be issued after notice to the

       parties; at least the commissioner should issue

       notice to the parties calling upon them to appear

       in the property on the date he proposes to visit

       the property for investigation.              Unfortunately,


          obsessed by a sense of emergency, the

       commissioner has admittedly departed from his

       obligation under Order XXVI R. 18 CPC. The

       consequence is that the Court is constrained to

       direct    the second      commissioner           to    make

       "necessary rectification and additions in the light

       of      the   objections          raised         by       the

       defendants.....................................................

       .....


              Nevertheless, his report has been prepared

       ex-parte and that is the vice of it. If a second

       commission    is    to    be     issued      under      such

       circumstances, the first report must be formally

       set aside. Of course, the ruling reported in

       Narayana Guptan v. Madhava Menon (1964 KLT.

       453).


            In Hydrose v. Govindankutty [(1981 KLT

        360], the expression "dissatisfied with the

        proceedings of the Commissioner" as engrafted

        in Rule 10 (3) Order XXVI discussed in detail in

        reference to Rule 12 (2) of Order XXVI and it

        was held that "sub rule (3) does not specifically

        provide for wiping out            evidence which is

        already part of the record. It only contemplates

        a further enquiry and therefore, a further report



        which will also become evidence and part of the

        record by virtue of sub rule (2). If the Court is

        dissatisfied with the proceedings of the first

        commissioner, it may not         attach   much

        probative value to his report in deciding the

        issue before it. Rule 10(3) does not provide for

        setting aside a report and issuing a new or

        second commission. It is not the repository of

        the court's power        to issue      a second

        commission."

      29.         The very same view        was reiterated by

another single Bench of this Court in Ummer v.

Muhammed [(1983) KLT 258] in the following lines.




      The Court can issue a second commission only

      under Order 26 Rule 10(3) of the Code. As per the

      above provision, the Court should, for any reason,

      he dissatisfied with the proceedings of the

      commissioner already deputed. The dissatisfaction

      can be before the submission of the report or after

      that. No question of setting aside the report arises

      if the Court was dissatisfied about the work of the

      commissioner and issued a second commission

      before he submitted the report. Proceedings of the

      Commissioner cannot but include the report of the



      commissioner, if a report has been submitted. If

      the     Court  is  dissatisfied   about    what  the

      commissioner did, can the report be salvaged

      simply because the report is not specifically made

      mention of in rule 10(3). Not only that the Court

      gets jurisdiction to issue a second commission only

      if the Court for any reason is dissatisfied with the

      work of the first commissioner.


      Going by the scheme of the relevant provision of

      the Code, this is not         something which is

      contemplated. Simply because rule 10(3) does not

      provide for the setting aside of the first commission

      report, it cannot be said that a second commission

      can be issued without setting aside the first

      commission report. If, for example, the Court feels

      some more details are to be gathered, the Court

      can depute the same commissioner for the same

      purpose and in that case, no setting aside of the

      report already submitted is necessary.


      Order appointing a second commissioner, without

      assigning any reasons why the report of the

      previous commissioner is ignored, is not only

      contrary to the provisions of O.26 R.10((3) but is to

      be condemned.



                                     (emphasis supplied)

In that decision, the Single Bench of this Court took the

view that the court can issue a second commission only

under Order XXVI Rule 10(3) CPC. This observation was

made without considering the application of Rule 14(3) of

Order XXVI CPC.

      30.        The Culcutta High Court in     Chinmaya

Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =

2016      KHC 2319] took       another view stating that

"although rule 10 of Order XXVI does not expressly

provide for setting aside of a commissioner's report, the

court can do so in exercise of its inherent power."

      31.         We are in respectful disagreement with

the view taken by the High Court of Calcutta simply on

the reason that the mandate under Rule 10 says that

the report "shall be in evidence in the suit and shall form

part of record". So in no event it can be set aside but the

probative value of     the same can be looked into and


 assess at the time of hearing of the suit or proceedings.

If it is found that there is no probative value attached to

the said document, the court need not act upon the

document but there is no provision for setting aside the

same under Rule 10 of Order XXVI as            the mandate

included therein says otherwise. It is also well settled

that when there is provision to meet a particular situation

in the CPC the court is not expected to exercise

jurisdiction under Section 151 CPC. A strict interpretation

of rule 10 of Order XXVI, would show that there is no

scope or occasion for setting aside the report of the

commissioner which is "shall be in evidence in the suit

and shall form part of the record."

      32.         In Swami Premananda Bharathi v.

Swami Yogananda Bharathi [(1985 (1) KLT 144)] a

Division Bench of this Court held as follows:

       "That    the first commissioner's    report  and

       proceedings should be set aside for reasons to be

       recorded and then only the court can proceed to

       appoint another commissioner to do the work is a



      wholesome rule of law based on public policy. The

      proceedings in the court below could be expedited

      without waste of time and money. We are of the

      view, that only if the court has reason to be

      dissatisfied with the proceedings and report of the

      first commissioner for reasons stated, it can

      appoint a second commissioner for further inquiry.

      This is a condition precedent.        The provision

      contained in Order XXVI Rule 12 C.P.C is "vital".

      Strict adherence alone will facilitate speedier,

      effective and cheaper administration of justice.

      Therefore,    the  appointment     of   the second

      commissioner and the reports filed by him without

      setting aside the first commissioner's report is

      wholly illegal and without jurisdiction".



            33. The said decision was rendered after

referring the above said decisions but did not go into the

question of different treatment given to Rule 1 to 14 of

Order XXVI in accordance with the purpose to be

achieved, but had taken note of minor difference in the

phraseology in Order XXVI Rule 10 (3) CPC and Order

XXVI Rule 12 CPC.        As discussed in earlier paragraph

Rule    12    deals   with   examination      of accounts or


adjustment of accounts through commission. But Rules

10(2)     and    (3)  stand    for commission    for  local

investigation.     The power of Court to examine the

Commissioner personally in open court is engrafted in

Rule 10(2) but there is no such power included any

where in Rule 11 or 12. But for saying that the report of

the Commissioner shall be evidence in the suit.        The

expression "shall form part of the record" as engrafted in

Rule 10 (2) is conspicuously absent in Rule 12 (2). In

fact Rule 10 and Rule 12 designed and         intended for

meeting      different  situations are   having   different

applications and impact, though the principles laid down

therein are one and the same.

      34.      Neither in Rule 10 nor in Rule 12 the power

to set aside the commission report or to wipe out of

record, is included. The report submitted under Rule 12,

though shall be in evidence in the suit, it will not form

part of the record as in the case of Rule 10 wherein it is

specifically stated that the report of the Commissioner


and the evidence taken by him shall form part of the

record. As discussed in earlier paragraphs both Rule 10

and 12 emphasis        the need to issue and to direct a

further enquiry when the Court has reason to dissatisfy

with the proceedings of the Commissioner. Necessarily a

further enquiry stands       for issuance of      a second

Commission. Nowhere it is stated in Rule 10 or 12 the

requirement of setting aside earlier one or to discard the

earlier one.     Setting aside of a commission report or

varying a commission report, stands provided only in

Rule 14(2) which stands for issuance of commission to

make partition. The Division Bench did not consider the

purpose for which Rule 10 and 12 was enacted and also

the conspicuous absence of expression "shall form part

of record" in Rule 12 (2) and also absence of provision

either in Rule 10 or in Rule 12 for setting aside or

varying the commission report. What is applied by the

Division Bench in that decision is the public policy to have

a speedier, effective and cheaper administration of



justice and not on the basis of the scheme of Order XXVI

CPC and the rules thereunder.          In fact what is held in

that decision is that the Court can appoint a second

commission for further enquiry only if the Court has

reason to dissatisfy with the proceedings and report of

the first commissioner for the reasons stated.

      35.        It is well settled that a judgment has to be

read in whole to appreciate what actually is rendered, the

ratio/rationale and the principle applied, in order to

understand what is actually given by the judgment/

adjudication     thereof.    There    may     be  so    many

observations/discussions leading to an inference        or in

arriving at a conclusion in a judgment. It is not advisable

to pick and choose one or two words or sentences and to

interpret the same apart from what is actually dealt

under the judgment.

      36.        While interpreting a judgment on the

rationale/ratio    applied     therein,   the   observations,

reasons/discussions made therein in arriving at a


conclusion shall be understood not in isolation apart from

the conclusion arrived at. The observations must be read

in the context in which they appear to have been stated

and observation made in the judgment should not be

read in isolation apart from the conclusion arrived

therein. Further the observation shall not be substituted

in place of conclusion arrived at, there cannot be any

uniform application of rules governing interpretation of

statutes and interpretation of judgment/orders. They are

governed by different fields of interpretation.

      37.         In Union of India and another v. Major

Bahadur Singh [(2006) 1 SCC 368] the Apex Court

settled the following in the matter of interpretation of

judgments.

               "Observations of the courts are neither to be

       read as Euclid's theorems nor as provisions of the

       statute and that too taken out of their context.

       These observations must be read in the context in

       which     they  appear    to  have    been   stated.

       Judgments of the courts are not to be construed as

       statutes.     To interpret words, phrases and



       provisions of a statute, it may become necessary

       for judges to embark into lengthy discussions but

       the discussions is meant to explain and not to

       define."

      38.        Then again in Nair Service Society v.

State of Kerala [(2007) 4 SCC 1], it was held by the

Apex Court that for construing a judgment, it must be

read in its entirety.

      39.        In Bombay Dyeing & Mfg. Co. Ltd. v.

Bombay Environmental Action Group and others

[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the

position stands further reiterated as follows:

      "Judgment are required to be read in their entirety.

      A    judgment cannot be read as           a  statute.

      Construction of a judgment should be made in the

      light of the factual matrix involved therein. What is

      more important is to see the issues involved therein

      and the context wherein observations were made.

      Any observations made in a judgment should not be

      read in isolation and out of context."



      40.        While applying the above said principle in

interpreting the judgment in Swami Premananda



Bharathi's case the observation made by the Division

Bench by importing application of public policy in order to

have a speedy disposal, effective time management and

cheaper administration of justice has to be understood in

that context. The conclusion arrived at by the Division

Bench is that "only if the court has reason to be

dissatisfied with the proceedings and report of the first

commissioner for reasons stated, it can appoint a second

commission for further inquiry and that is a condition

precedent. The condition precedent is the dissatisfaction

of the proceedings and report of the first commission.

So, in fact, the position rendered in that decision does

not have any inconsistency with the earlier view taken in

Hydrose v. Govindankutty [1981 KLT 360] and

Ummer v. Muhammed [1983 KLT 258].

      41. The question of setting aside of          earlier

commission report before issuing a second commission

would arise only in case of commission issued for

effecting partition.    In all other cases there is no



necessity, requirement or need to set side the earlier

report, before issuing a second Commission either for the

very same purpose or for some other purposes. No such

mandate is included any where in Rule 1 to 13 to Order

XXVI. At the same time, we cannot shut our eyes into

certain realities which are   prevailed in certain part of

Kerala in issuing commissions one after another. There

are cases of issuing three or four commissions for the

very same purpose.          Such practice definitely is

detrimental to the speedy disposal of the suit and

cheaper administration of justice.   Both are detrimental

to the system and hence has to be deprecated. But at

the same time, it does not mean that the court is not

empowered to issue one or two or three commissions if

the situation warrants so.

      42. The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal


position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.


(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition


precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.



(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

      43.        On coming into the impugned judgment,

the first appellate court proceeded in the matter under a

mistaken impression that the second commission can be

issued only after setting aside the first one, relying on

the decision rendered in Swami Premananda Bharathi's

case(supra). Further, the first appellate court committed

a serious error in overlooking the settled position that

when there is mistake or difference in the survey

number, description of boundary will prevail over, the

property. Ext.C1(a) is seen prepared correctly identifying

and locating item (1) property having an extent of 10

cents    in Survey No.164/3.     The properties lying on

either side belongs to the defendants. The defendants

did not have any case that they had obtained title over

10 cents of property comprised in Survey No. 164/3

under any document of title but simply advanced a case

that the same will form part of their large extent of


property and at the same time they advanced a case

that the description and extent       as stated in their

document of title are not correct. So no much reliance

can be given to the case advanced by the defendant that

the 10 cents of property comprised in survey No.164/3

will form part of their large extent.     No satisfactory

evidence       much less any evidence adduced in that

behalf by the defendant, which was also over looked by

the lower court. On the other hand, the document of title

produced by the plaintiff and the boundary description

entered therein fully and completely tally with Ext.C1 (a)

plan in respect of the 10 cents of property comprised in

survey No.164/3. The only defect in the case advanced

by the plaintiff is that as per their document of title in

Ext.A8, the sub division number was wrongly/ mistakenly

entered for which a correction    deed was executed as

Ext.A9. As discussed earlier, even without a correction

deed or correcting the sub division number or the survey

number if it was found that there is a mistake, crept in

R.S.A.No.733/2004            47

the survey number, the court has to look into the

boundary description and the    boundaries entered in the

document and to identify and locate the property based

on the boundaries.       The said settled principle was

overlooked or rather ignored by the first appellate court.

Added by the fact that the defendant did not have any

consistent case or acceptable version regarding the

acquisition of right title or interest over   item No.1

property.     On the other hand, on either side of    item

No.1, the property belonging to the defendant situated.

No other way is available to the     property of plaintiff

scheduled in the suit as item No.2.

      44.    So the material facts which are relevant for

consideration in the adjudication of dispute involved in

the suit have been not considered either by the trial court

or by the appellate court which has resulted in the

miscarriage      of justice which   would    attract   the

interference by this Court and we are doing so,         by

setting aside the decree and judgment of both the trial

R.S.A.No.733/2004            48

court and the first appellate court. The matter is

remanded back to the first appellate court to have a fresh

consideration of facts and evidence involved in the case

in accordance with law in force. We are also constrained

to issue direction to the first appellate court to have an

earlier disposal of the appeal within a time schedule of

three months from the date of receipt of copy of this

judgment, as the litigation was started in the year 1988.

      No costs. The parties shall appear before the first

appellate court on 5.1.2017.

                                   Sd/-




                         P.R.Ramachandra Menon
                                  Judge

                                   Sd/-

                              P.Somarajan
                                 Judge
al/-

                    True copy
                                         P.S to Judge

R.S.A.No.733/2004          49



fair




this is copied from the chamber of P.Somarajan(J) as on
19.12.2016





              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

          THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
                                  &
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

    THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938

                      RSA.No. 733 of 2004 ( )
                      ------------------------


AGAINST THE ORDER/JUDGMENT IN AS 280/1999 of III ADDITIONAL DISTRICT
              COURT (ADHOC), THRISSUR DATED 04-12-2003

   AGAINST THE ORDER/JUDGMENT IN OS 2295/1988 of PRINCIPAL MUNSIFF
                   COURT,THRISSUR DATED 20-02-1999

APPELLANT/APPELLANT/PLAINTIFF::
-------------------------------

            FRANCIS ASSISSI, S/O.THATTILMANDI  JOSEPH,
            RESIDING AT ANTHIKKAD VILLAGE, THRISSUR TALUK.


            BY ADVS.SRI.T.C.SURESH MENON
                    SMT.G.GEETHISHA
                    SMT.M.R.VALSA

RESPONDENTS/RESPONDENTS/DEFENDANTS::
--------------------------------------

          1. SR.BREESIYA
            MOTHER SUPERIOR, INFANT JESUS CONVENT,,
            ARANATTUKARA VILLAGE, THRISSUR TALUK.

          2. SR.LISIYA,
            ASSISTANT MOTHER SUPERIOR,
           INFANT JESUS CONVENT,, ARANATTUKARA VILLAGE,
           THRISSUR TALUK.

          3. INFANT JESUS CONVENT,
            ARANATTUKARA VILLAGE, THRISSUR TALUK,,
            REPRESENTED BY ITS MOTHER SUPERIOR.


            R,R1 TO R3  BY ADV. SRI.M.GEORGE THOMAS
            R,R1 TO R3  BY ADV. SRI.P.VIJAYA BHANU

       THIS REGULAR SECOND APPEAL  HAVING BEEN FINALLY HEARD  ON
15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:


al/-



                 P.R.Ramachandra Menon              'CR'
                             &
                     P.Somarajan, JJ.
   ====================================
                    R.S.A.No.733 of 2004
 ====================================
        Dated this the 15 thday of December, 2016.


                        JUDGMENT


P.Somarajan, J.




     This Second Regular Appeal is preferred against the

decree and judgment of Additional District Court, Thrissur

in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in

the original suit in   O.S. 2295/1988 on the file of the

Munsiff Court, Thrissur. The appeal had initially come up

before a learned Single Judge of this Court and it was

placed before us doubting the legal position laid down by a

Division Bench of this Court in Swami Premananda

Bharathi v. Swami Yogananda Bharathi [(1985 KLT

144). Earlier,    a  single  bench   of   this  Court    in

Dr.Subramonian v. K.S.E.B.[(1987 KLT 355] expressed

doubt about the legal proposition laid down in the Swami

Premananda Bharathi's case but did not opt to refer the

issue to a Division Bench. In Hydrose V. Govindankutty,

R.S.A.No.733/2004              2

[(1981) KLT 360]          M.P.Menon.J. took the view that

without setting aside the report submitted by a finger

print expert, another finger print expert can be

appointed.       Another decision drawn in Sivaraman v.

Narayanan [(1986) KLT 578] Varghese Kalliyath .J.

took the view that the court has jurisdiction to appoint

the same Commissioner which he omitted to note in the

report already submitted.       So the question came up

whether it is permissible to have a second report of

commission without wiping out the earlier one and

doubted the legal preposition laid down in Swami

Premananda Bharathi's case           (supra).  Hence the

matter placed before us.

      2.         Before going into the reference, it is

worthful to narrate the factual sequences involved in the

case. The suit in O.S. No. 2295/88 on the file of Principal

Munsiff, Thrissur, was filed for recovery of possession on

the strength of title, mandatory injunction and for

damages. There are two items of property scheduled in

R.S.A.No.733/2004            3

the plaint, which were originally belonged to Chungath

Ouseph, by virtue of sale deed of the year 1954. It was

later on purchased by the plaintiff on 23.11.1988 from

the son of Chungath Ouseph by name Jose. Item No.1

property is the only access to Item No.2 of plaint

schedule. Its eastern end starts from the municipal road

lying north-south direction. A gate was installed at the

entrance by its previous owner. The property lying on

either side of Item No.1 is owned and possessed by the

defendant. When they attempted to demolish the gate, it

has necessitated the institution of the present suit, by

the plaintiffs for recovery of possession, for damages,

for permanent prohibitory injunction and mandatory

injunction to remove the pipeline drawn through Item

No.1 property.

      3.         The defendant contested the suit alleging

that the plaint Item No.1 is the way used by the convent

as means of access. The defendant has purchased the

properties in the year 1960. The school compound of the

R.S.A.No.733/2004             4

 defendant is having an extent of 2 acre 91 cents, which

is situated on the southern side of convent property. But,

the extent of school compound is mistakenly shown in

the document. There was a wooden gate in front of their

property and it was replaced with an iron gate in the year

1968 by the defendants. A pipeline was drawn across

the plaint Item No.1 property.      Telephone and electric

lines were also drawn through the disputed property.

The disputed road is the only way leading to the convent

building which faces towards south and the defendants

are in exclusive possession and ownership of plaint

schedule Item No.1. Even if the plaintiff has any right,

title or interest over the property, the same is stood as

lost by adverse possession and limitation. Hence, they

pressed for dismissal of the suit.

      4.         An additional written statement was also

filed disputing the title of plaintiff over the plaint

schedule Item No.1 property.     Plaint schedule Item No.1

is not a property used by the plaintiff as means of access.

R.S.A.No.733/2004             5

The claim of damage is also disputed.       The structures

existing in Item No.1 were in existence right from the

year 1949.

      5.         A second additional written statement was

also filed disputing the description of Item No.1 property

after its amendment.       The pipeline was drawn long

before the suit and it is known to the plaintiff.

      6.         The Trial Court dismissed the suit by its

judgment dated 20.02.1999 against which appeal in A.S.

No.280/1999 was filed before the Additional District

Court, Thrissur and by impugned judgment dated

04.12.2003 the appeal was dismissed against which this

Regular Second Appeal was preferred.

      7.         Before going into the impugned judgment

and decree, we would like to have an understanding with

respect to the actual impact of Order XXVI CPC and the

Scheme thereof.

      8.         Going by Order XXVI, it is clear that its

Rules are regulated in accordance with the purpose in

R.S.A.No.733/2004              6

which a commission could be issued viz., (1) to examine

witnesses. (2) for local investigation (3) for scientific

investigation, performance of ministerial act and sale of

movable property (4) to examine accounts and (5) to

make partitions.      Rules 1 to 14 are regulated under

different     compartments,    under     Order   XXVI,    in

accordance with its purpose viz., Rules 1 to 8

incorporated for the purpose of examining the witnesses,

Rule 9 & 10 for the purpose of local investigations, Rule

10 A, 10B and 10 C for the purpose of commissions for

scientific investigation, performance of ministerial act and

sale of movable property (inserted by the amendment

Act of 104 of 1976 with effect from 1.2.1977), Rules 11

& 12 for examining       accounts, and Rules 13 & 14 for

making partitions. Rule 15 to 18 B are general provisions

applicable to commissions issued for various purposes.

Rule 19 to 21 deals with issuance of commission at the

instance of foreign tribunals and High Courts.

      9.         Going by the above said scheme, the

R.S.A.No.733/2004               7

legislature has in its wisdom given headings bifurcating

Rule 1 to 15 in Order XXVI in accordance with their

purposes. The requirements are different which is well

evident from a joint reading of the various Rules 1 to 15

especially, Rule 4A Rule 8 (2), Rule 10(2) and (3), Rule

10A (2), B(2), C(2), Rules 12 (2) and 14 (2) which are

extracted below for reference.

                            Order XXVI

         Commissions to examine witnesses

         1..........

         2..........

         3..........

         4..........

         Rule 4A. Commission for examination of

         any person resident within the local

         limits of the jurisdiction of the court.-

         Notwithstanding anything contained in these

         rules, any court may, in the interest of justice

         or for the expeditious disposal of the case or

         for any other reason, issue commission in any

         Suit for the examination, on interrogatories or

         otherwise, of any person resident within the

R.S.A.No.733/2004                8

         local limits of its      jurisdiction, and the

         evidence so recorded shall be read in

         evidence.

         5............

         6...........

         Rule    7.   Return of commission with

         depositions     of   witnesses.-      Where     a

         commission has been duly executed, it shall

         be returned, together with the evidence taken

         under it, to the court from which it was

         issued, unless the order for issuing the

         commission has otherwise directed, in which

         case the commission shall be returned in

         terms of such order; and the commission and

         the return thereto and the evidence taken

         under it shall (subject to the provisions of rule

         8) form part of the record of the suit.


         Rule 8. When depositions may be read in

         evidence.-      Evidence    taken     under     a

         commission shall not be read as evidence in

         the suit without the consent of the party

         against whom the same is offered, unless--


         (a) the person who gave the evidence is

         beyond the jurisdiction of the court, or dead

         or unable from sickness or infirmity to attend

R.S.A.No.733/2004                 9

         to be personally examined, or exempted from

         personal appearance in court, or is a person in

         the service of the Government who cannot, in

         the opinion of the court, attend without

         detriment to the public service, or


         (b) the Court in its discretion dispenses with

         the proof of any of the circumstances

         mentioned in clause (a), and authorises the

         evidence of any person being read as

         evidence in the suit, notwithstanding proof

         that the cause for taking such evidence by

         commission has ceased at the time of reading

         the same.


         Commissions for local investigations


         9.......

         10 (1)..........

         Rule 10(2)Report and depositions to be

         evidence      in  suit--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; but the court or, with the

         permission of the court, any of the parties to

         the suit may examine the Commissioner

R.S.A.No.733/2004               10

         personally in open Court touching any of the

         matters referred to him or mentioned in his

         report, or as to his report, or as to the

         manner     in    which he   has    made      the

         investigation.


         Rule    10(3)      Commissioner     may       be

         examined in person--Where the court is for

         any reason dissatisfied with the proceedings

         of the Commissioner, it may direct such

         further inquiry to be made as it shall think fit.




      Commissions for scientific investigation,

    performance of ministerial act and sale of

                     movable property


         10A(1) .............

         10A(2) The provisions of rule 10 of this Order

         shall, as far as may be, apply in relation to

         Commissioner appointed under this rule as

         they apply in relation to a Commissioner

         appointed under rule 9.

         10B(1) .............

         10B(2) The provisions of rule 10 of this Order

         shall apply in relation to a Commissioner

         appointed under this rule as they apply in

R.S.A.No.733/2004               11

         relation to a Commissioner appointed under

         rule 9.

         10C(1) ...........

         10C(2) The provisions of rule 10 of this Order

         shall apply in relation to a Commissioner

         appointed under this rule as they apply in

         relation to a Commissioner appointed under

         rule 9.

         10C(3)......


           Commissions to examine accounts

         11.........

         12..........

         Rule 12(2)Proceedings and report to be

         evidence--Court       may      direct further

         inquiry--The proceedings and report (if any)

         of the Commissioner shall be evidence in the

         suit, but where the court has reason to be

         dissatisfied with them, it may direct such

         further enquiry as it shall think it.




           Commissions to make partitions

         13..........

         14(1).........

         Rule 14 (2)The Commissioner shall then

         prepare     and   sign    a    report or   the

R.S.A.No.733/2004               12

         Commissioners (where the commission was

         issued to more than one person and they

         cannot agree) shall prepare and sign separate

         reports appointing the share of each party

         and distinguishing each share (if so directed

         by the said order) by metes and bounds. Such

         report or reports shall be annexed to the

         commission and transmitted to the Court; and

         the Court, after hearing any objections which

         the parties may make to the report or reports,

         shall confirm, vary or set aside the same.


         Rule 14(3) Where the court confirms or varies

         the report or reports it shall pass a decree in

         accordance with the same as confirmed or

         varied; but where the court sets aside the

         report or reports it shall either issue a new

         commission or make such other order as it

         shall think fit.

                                        (emphasis supplied )




      10. Rule 4A was not in the Act till it was inserted

by CPC (Amendment) Act 46 of 1999 with effect from

1.7.2002 enabling and empowering the court to issue a

commission in the interest of justice, for expeditious

R.S.A.No.733/2004            13

disposal or on any other reason.

      11.Incidentally, another question came up for

consideration as to the applicability of Rule 8 of Order

XXVI CPC, on insertion of Rule 4A by CPC Act 46 of 1999

with effect from 1.7.2002. Rule 8 empowers the court to

issue a commission for examination of person only on

satisfying the reason embodied under Clause (a) of Rule

8. By the insertion of Rule 4A, wide discretionary power

is invested with the court in the matter of issuance of

commission for examination of any person on the ground

of "interest of justice or for expeditious disposal or any

other reason", by which the restrictions imposed under

Rule 8 of Order XXVI CPC are taken away, virtually

making Rule 8 redundant. We have also taken note of

Rule 7 of Order XXVI wherein the evidence taken shall

"subject to the provision of Rule 8" form part of the

record of the suit.      The expression subject to the

provision of Rule 8 " was inserted by the Act of 104 of

1976 with effect from 1.2.1977 prior to the incorporation

R.S.A.No.733/2004            14

of Rule 4A by the Act 46 of 1999 with effect from

1.7.2002.      Since Rule 8 became redundant it has no

application in the matter of Rule 7 of Order XXVI.

      12.        The     expression  "shall  be   read    in

evidence" incorporated in Rule 4A, the expression "shall

not be read as evidence" incorporated in Rule 8, the

expression "shall be in evidence in the suit and shall form

part of the record" engrafted in sub rule 2 of Rule 10,

the expression "shall be in evidence in the suit" as

incorporated in sub rule 2 of Rule 12 and the expression

"shall confirm or vary or set aside" as incorporated in sub

rule 2 of Rule 14 would clearly show that the requirement

for admitting the report of the Commissioner either on

record or in evidence under Rules 4A, 8, 10(2) and (3),

12 (2) and 14(2) are different. In Rule 14 (2) nothing

mentioned whether it will form part of record or

evidence. But says that the court can confirm or vary or

set aside the report on hearing the objections of the

party concerned. Different yardsticks were applied in the

R.S.A.No.733/2004            15

matter of commissioner's report as to whether it would

form part of evidence or part of record based on the

purpose in which the commission could be issued viz.,

six categories made mentioned above.

      13.        Further the power of court in dealing with

the commissioner's report are also differently dealt in

Rule 4A, Rule 8, Rule 10(3), Rules 12 (2) and 14 (2).

Rule 8 became redundant by virtue of amendment and

incorporation of Rule 4A to Order XXVI.           What is

mandated in Rule 4A is that the evidence so recorded by

the commissioner "shall be read in evidence".       So the

court is bound to read in evidence what is recorded by

commissioner on examination of witnesses. There is no

provision for setting aside the deposition recorded by the

commissioner or the report submitted by him. It doesn't

say anything about whether it would form part of the

record or evidence in the suit. Sub rule (3) of Rule 14

says that where the Court confirms or varies the report

it shall pass a decree in accordance with the same, but

R.S.A.No.733/2004             16

where the Court sets aside the report or reports, it shall

either issue a new commission or make such other order

as it shall think fit. Going by Sub rule (3) of Rule 14, it is

clear that a commission which was issued for making

partition either be confirmed or be varied or be set aside

as the      case may be by the Court and when it is

confirmed or varied the Court is bound to pass a decree

in accordance with the same but when it is set aside a

second commission can be issued          for which setting

aside of the earlier report is a condition precedent. In

short, setting aside of an earlier report of the

Commissioner for issuing a second commission mandated

only under sub rule 3 of Rule 14 of Order XXVI CPC.

      14.      There is no provision anywhere under Rule 1

to 8 enabling the Court to examine the Commissioner

who prepared the report and recorded the deposition of a

witness/witnesses as the case may be, presumably on

the reason that there is no scope for setting aside the

deposition recorded or the report thereof. If the

R.S.A.No.733/2004           17

examination of witnesses is incomplete or a re-

examination of the witnesses by recalling him is

necessitated after the submission of the first report no

doubt a second commission can be issued for that

purpose. The question of setting aside earlier report of

the commissioner does not arise under Order XXVI Rule 1

to 8, more specifically the commissions which were

issued for examination of persons (witnesses) and the

report and deposition recorded by him.

      15.        There is some slight difference in the

approach made by the legislature in Rule 10(2) and (3)

wherein      it is mandated   that the   report of the

commissioner and the evidence taken by him "shall be

evidence in the suit and shall form part of the record",

but 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 or as to the manner in which he has

made the investigation. Rule 10(3) deals with the power

R.S.A.No.733/2004           18

of the Court to direct further enquiry when there is any

reason to dissatisfy with the proceedings of the

Commissioner. Setting aside of a report or cancelling a

report of Commissioner is conspicuously absent in sub

rule (2) and (3) of Rule 10, but it empowers the Court to

direct "such further enquiry" which stands for a second

enquiry or a subsequent enquiry necessarily through a

second commission.

      16.        The provisions of Rule 10 is made

applicable in relation to a commission appointed under

Rule 10A, 10B and 10C which are dealing with the

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property by virtue of sub rule 2 attached to 10A, 10B

and 10C. So the very same legal position is applicable in

the    matter    of commission     issued  for  scientific

investigation, performance of ministerial act and sale of

movable property under Rule 10A, 10B and 10C and a

second commission is possible without setting aside the

R.S.A.No.733/2004            19

earlier one.

      17.        The very same provision incorporated in

Rule 12(2) of Order XXVI, provides the power to direct

"such further enquiry" when there is reason to dissatisfy

with the report of the commissioner.             A second

commission is possible without setting aside the earlier

one in the matter of examination of accounts through

commission.

      18.        The very similar provision is incorporated

in Rule      12(2) also.   The authority    to set aside

commission's report or to vary the commission's report is

engrafted only in sub rule (2) of Rule 14 which stands for

commission to make partition. On applying a plain

reading and strict interpretation to Rule 1 to 14 to Order

XXVI, the resultant effect is that a report submitted by

the Commissioner can be varied or set aside by the Court

only under Rule 14 sub rule (2) of Order XXVI, which

stands for commission to make partition and it is a

condition precedent for issuing a second commission.

R.S.A.No.733/2004              20

      19.         The general provisions i.e. Rule 15 to 18

(B) of Order XXVI do not say anything about the

examination of Commissioner, or issuance of a second

commission or the requirement of setting aside of first

report.

      20.       Divergent views were expressed by various

High Courts regarding the question whether the earlier

report of the Commissioner should be wiped off before

issuing a second commission.

      21.         The Madras High Court condemned the

practice of appointing successive Commissioners in

Thottama v. C.S. Subramaniyyan (AIR 1922 Madras

219). That decision was rendered in Rule 14 of Order

XXVI CPC.       But going by the decision, it is clear that the

commission was issued not for effecting partition but for

making local investigation and to assess the value of

improvements effected in the mortgaged property.             In

that case three successive Commissions were issued for

the very same purpose viz; for assessing the value of

R.S.A.No.733/2004              21

improvements effected in the mortgaged property. The

said practice of issuing commission one after another was

condemned and deprecated. In that decision it appears

that the mandate under Rule 14 of Order XXVI CPC was

wrongly applied.

      22.       A Division Bench of Madras High Court in

Ambi and another v. Kunhikavamma and others

[(AIR 1929 Madras            661]    considered    both    the

application of Rule 10(3) and Rule 14(3) and discussed

in detail, the scope of "further enquiry" in the following

lines.

              The rule is R. 10(3) and lays down that

       further enquiry may be ordered when the Court is

       for any reason dissatisfied with the proceedings of

       the Commission. It may be noted that there is no

       provision corresponding to that in R.14 (3) under

       which the Court may issue a new commission.

       What is contemplated under R.10(3) obviously is a

       further enquiry by the Commissioner already

       appointed by the Court itself. It may be that where

       the Court is so dissatisfied with the whole

       proceedings of the commissioner that it thinks it

       better to discard the whole record and start afresh,

R.S.A.No.733/2004                       22

       such a       procedure would not be contrary to the

       code.      That is the line of argument adopted in

       Thottamma                                                             v.

       Subramaniayyan.................................................

       ........................................................................

       ...........


       Only the decision of the Court that the work had

       been so badly done that it had to be done over

       again would avail to validate the issue of a second

       commission........................................................

       ........................................................................

       ............


         Only if he is of opinion after hearing both sides

       that the report is wholly useless is it open to him to

       discard it and issue a fresh commission to cover the

       same ground, and in that case the report of the

       first commission is as if it had never been and

       would          not         be         evidence            in        the

       case.................................................


       He even issued an order to appoint a third

       commission, whose report no doubt would have

       been dealt with in the same way, and so on ad

       infinitum. This procedure, besides being in our view

R.S.A.No.733/2004             23

       contrary     to    law,    creates     considerable

       embarrassment to us here.

      23.         The said decision, though doesn't say

anything with respect to the requirement to set aside the

earlier one before issuing the second one, the practice of

issuing commission one after another is deprecated.

      24.        Yet another Division Bench of same High

Court in Kunhi Kutti Ali and another v. Mohammad

Haji and others [AIR 1931 Madras 73] took the view

that the earlier commission should be wiped out before

issuing a second commission.        The relevant portion is

extracted for reference.

         "We have in the first place to remark that the

         lower Court should not have issued two separate

         commissions to deal with one and the same

         subject and to treat the reports of both the

         commissioners as evidence in the case.       The

         exact circumstances in which he came to issue

         the second commission do not appear from the

         record that has been placed before us. But the

         second commission should not have been issued,

         unless it was thought that the report of the first

         commissioner was not satisfactory in which case

R.S.A.No.733/2004               24

          the earlier commission should have been wiped

         out altogether and attention should have been

         paid only to what was reported by the second

         commissioner.      Instead of this, the learned

         Subordinate Judge has balanced the report of

         one commissioner against that of the other and

         has expressed a performance for the views of the

         first commissioner. In taking this course, he has

         acted with great impropriety and contrary to

         what is contemplated by O.26.R.10(3)Civil PC."



      25.        A Division Bench of Patna High Court in

Shib Charan Sahu and others v. Sarda Prasad and

another (AIR 1937, Patna 670) took a different view

holding that the first commissioner's report cannot be

wiped off the record. It is held that when a Court issues

a commission but is dissatisfied with the report of the

Commissioner, another commission can be issued but the

earlier one cannot be wiped of the record. The relevant

portion of the judgment is extracted below for reference.

          Commission- Court dissatisfied with report of

          commissioner, can issue another commission-

          Report of first commissioner however cannot be

R.S.A.No.733/2004                25

          wiped out of record.........................................


          When     a Court issues a commission. But is

          dissatisfied with the report of the commissioner

          it is entitled to issue another commission and

          also for its report, but the report of the first

          commissioner cannot be wiped off the record.


          In those judgments, the Madras High Court was

          endeavouring to correct a very bad tendency on

          the part of the Munsifs of the Malabar districts

          who appeared to have got into the habit of

          sending     out  simultaneous       commissions          to

          investigate the same issue of fact and then

          taking all the commissioner's reports into

          consideration and deciding as between these

          various reports which of them was preferable;

          and this habit of sending out commissions

          whether     simultaneous    or     consecutive         had

          become a nuisance which the Madras High Court

          very properly desired to check and put an end

          to. I can find in those judgments no statement

          of a principle such as is contended for in this

          appeal. There is nothing in O.26, R.10, Civil P.C

          to justify such a contention. It is in the power of

          the Trial Court to send out a second or even a

R.S.A.No.733/2004                26

           third commission, and when all the materials

          are before the Court it may at the time of

          delivering judgment attach very little or no

          weight to the first commissioner's report but this

          is very far from saying that this amounts to

          requiring the first report to be wiped out of the

          record and not considered as evidence.



      26.         A single bench of the same High Court

followed the principle         laid down in     Shib Charan

Sahu's case (supra) in the following lines.

          Order XXVI provides that the Commissioner

          appointed under Rule 9 has to return the

          evidence recorded by him together with his

          report in writing signed by him to the Court.

          Sub rule (2) of R.10 of O.XXVI interalia makes

          it clear that the report of the Commissioner

          and the evidence taken by him shall be

          evidence in the suit and shall form part of the

          record. Sub rule (3) authorises the Court to

          direct such further enquiry to be made as it

          thinks fit in case the Court is, for any reason

          dissatisfied with the proceedings of the

          Commissioner. No provision of the Code,

          however, provides for the Commissioner's

          report being taken off the record or not being

R.S.A.No.733/2004               27

           considered as evidence in any circumstances.

          The value to be attached to the report is

          however, a different matter. It is obvious that

          the Court was either not satisfied with the

          proceedings of the first Commission or merely

          because of the statements made by the

          parties on January 16, 1970 the second

          commission was ultimately issued.



      27.         It was held by a Single Bench of this High

Court in Narayan Guptan v. Madhava Menon (1964

KLT 453) that the issuance of a second Commission

without setting aside the earlier one is only an error, or

defect or     irregularity in the proceedings which does not

per se affect the merits of the case.

      28.         In Moidu v. Lekshmi Amma [(1968)

KLT 699] V.R.Krishna Iyer. J. took the view that           a

second commission can be issued only after formally

setting aside the earlier one. The relevant portion of the

said decision is extracted below for reference.

         If a second commission is to be issued under

         such circumstances, the first report must be

R.S.A.No.733/2004                     28

          formaly set aside. A conscious irregularity need

         not be committed at a stage where the decree

         has not been passed, when it can be set

         right..............................................................

         .......


       He rightly relies upon Order xxvi R. 18, Civil

       Procedure Code, and the ruling reported in

       Achuthan v. Kunhipathumma (1967 KLT. 326)

       wherein a Division Bench of this Court has held

       that it is a principle of natural justice that it is

       only evidence taken in the presence of a party

       that can be used against him. For this reason,

       according to their Lordships, Order XXVI R. 18

       CPC. provides for an opportunity being given to

       the     parties     to     be     present        before       the

       commissioner in the property at the time of his

       inspection. Order XXVI R. 18, CPC. enshrining as

       it does a wholesome principle of natural justice,

       is treated as imperative. Under Order XXVI R. 18

       cpc a direction has to be issued by the Court to

       the parties before the issue of a commission and

       this direction should be issued after notice to the

       parties; at least the commissioner should issue

       notice to the parties calling upon them to appear

       in the property on the date he proposes to visit

       the property for investigation.              Unfortunately,

R.S.A.No.733/2004                  29

          obsessed by a sense of emergency, the

       commissioner has admittedly departed from his

       obligation under Order XXVI R. 18 CPC. The

       consequence is that the Court is constrained to

       direct    the second      commissioner           to    make

       "necessary rectification and additions in the light

       of      the   objections          raised         by       the

       defendants.....................................................

       .....


              Nevertheless, his report has been prepared

       ex-parte and that is the vice of it. If a second

       commission    is    to    be     issued      under      such

       circumstances, the first report must be formally

       set aside. Of course, the ruling reported in

       Narayana Guptan v. Madhava Menon (1964 KLT.

       453).


            In Hydrose v. Govindankutty [(1981 KLT

        360], the expression "dissatisfied with the

        proceedings of the Commissioner" as engrafted

        in Rule 10 (3) Order XXVI discussed in detail in

        reference to Rule 12 (2) of Order XXVI and it

        was held that "sub rule (3) does not specifically

        provide for wiping out            evidence which is

        already part of the record. It only contemplates

        a further enquiry and therefore, a further report

R.S.A.No.733/2004              30

        which will also become evidence and part of the

        record by virtue of sub rule (2). If the Court is

        dissatisfied with the proceedings of the first

        commissioner, it may not         attach   much

        probative value to his report in deciding the

        issue before it. Rule 10(3) does not provide for

        setting aside a report and issuing a new or

        second commission. It is not the repository of

        the court's power        to issue      a second

        commission."

      29.         The very same view        was reiterated by

another single Bench of this Court in Ummer v.

Muhammed [(1983) KLT 258] in the following lines.




      The Court can issue a second commission only

      under Order 26 Rule 10(3) of the Code. As per the

      above provision, the Court should, for any reason,

      he dissatisfied with the proceedings of the

      commissioner already deputed. The dissatisfaction

      can be before the submission of the report or after

      that. No question of setting aside the report arises

      if the Court was dissatisfied about the work of the

      commissioner and issued a second commission

      before he submitted the report. Proceedings of the

      Commissioner cannot but include the report of the

R.S.A.No.733/2004               31

      commissioner, if a report has been submitted. If

      the     Court  is  dissatisfied   about    what  the

      commissioner did, can the report be salvaged

      simply because the report is not specifically made

      mention of in rule 10(3). Not only that the Court

      gets jurisdiction to issue a second commission only

      if the Court for any reason is dissatisfied with the

      work of the first commissioner.


      Going by the scheme of the relevant provision of

      the Code, this is not         something which is

      contemplated. Simply because rule 10(3) does not

      provide for the setting aside of the first commission

      report, it cannot be said that a second commission

      can be issued without setting aside the first

      commission report. If, for example, the Court feels

      some more details are to be gathered, the Court

      can depute the same commissioner for the same

      purpose and in that case, no setting aside of the

      report already submitted is necessary.


      Order appointing a second commissioner, without

      assigning any reasons why the report of the

      previous commissioner is ignored, is not only

      contrary to the provisions of O.26 R.10((3) but is to

      be condemned.

R.S.A.No.733/2004            32



                                     (emphasis supplied)

In that decision, the Single Bench of this Court took the

view that the court can issue a second commission only

under Order XXVI Rule 10(3) CPC. This observation was

made without considering the application of Rule 14(3) of

Order XXVI CPC.

      30.        The Culcutta High Court in     Chinmaya

Saha v. Renuka Halder [ AIR 2016 Cacutta 33 =

2016      KHC 2319] took       another view stating that

"although rule 10 of Order XXVI does not expressly

provide for setting aside of a commissioner's report, the

court can do so in exercise of its inherent power."

      31.         We are in respectful disagreement with

the view taken by the High Court of Calcutta simply on

the reason that the mandate under Rule 10 says that

the report "shall be in evidence in the suit and shall form

part of record". So in no event it can be set aside but the

probative value of     the same can be looked into and

R.S.A.No.733/2004             33

 assess at the time of hearing of the suit or proceedings.

If it is found that there is no probative value attached to

the said document, the court need not act upon the

document but there is no provision for setting aside the

same under Rule 10 of Order XXVI as            the mandate

included therein says otherwise. It is also well settled

that when there is provision to meet a particular situation

in the CPC the court is not expected to exercise

jurisdiction under Section 151 CPC. A strict interpretation

of rule 10 of Order XXVI, would show that there is no

scope or occasion for setting aside the report of the

commissioner which is "shall be in evidence in the suit

and shall form part of the record."

      32.         In Swami Premananda Bharathi v.

Swami Yogananda Bharathi [(1985 (1) KLT 144)] a

Division Bench of this Court held as follows:

       "That    the first commissioner's    report  and

       proceedings should be set aside for reasons to be

       recorded and then only the court can proceed to

       appoint another commissioner to do the work is a

R.S.A.No.733/2004              34

      wholesome rule of law based on public policy. The

      proceedings in the court below could be expedited

      without waste of time and money. We are of the

      view, that only if the court has reason to be

      dissatisfied with the proceedings and report of the

      first commissioner for reasons stated, it can

      appoint a second commissioner for further inquiry.

      This is a condition precedent.        The provision

      contained in Order XXVI Rule 12 C.P.C is "vital".

      Strict adherence alone will facilitate speedier,

      effective and cheaper administration of justice.

      Therefore,    the  appointment     of   the second

      commissioner and the reports filed by him without

      setting aside the first commissioner's report is

      wholly illegal and without jurisdiction".



            33. The said decision was rendered after

referring the above said decisions but did not go into the

question of different treatment given to Rule 1 to 14 of

Order XXVI in accordance with the purpose to be

achieved, but had taken note of minor difference in the

phraseology in Order XXVI Rule 10 (3) CPC and Order

XXVI Rule 12 CPC.        As discussed in earlier paragraph

Rule    12    deals   with   examination      of accounts or

R.S.A.No.733/2004              35

adjustment of accounts through commission. But Rules

10(2)     and    (3)  stand    for commission    for  local

investigation.     The power of Court to examine the

Commissioner personally in open court is engrafted in

Rule 10(2) but there is no such power included any

where in Rule 11 or 12. But for saying that the report of

the Commissioner shall be evidence in the suit.        The

expression "shall form part of the record" as engrafted in

Rule 10 (2) is conspicuously absent in Rule 12 (2). In

fact Rule 10 and Rule 12 designed and         intended for

meeting      different  situations are   having   different

applications and impact, though the principles laid down

therein are one and the same.

      34.      Neither in Rule 10 nor in Rule 12 the power

to set aside the commission report or to wipe out of

record, is included. The report submitted under Rule 12,

though shall be in evidence in the suit, it will not form

part of the record as in the case of Rule 10 wherein it is

specifically stated that the report of the Commissioner

R.S.A.No.733/2004             36

and the evidence taken by him shall form part of the

record. As discussed in earlier paragraphs both Rule 10

and 12 emphasis        the need to issue and to direct a

further enquiry when the Court has reason to dissatisfy

with the proceedings of the Commissioner. Necessarily a

further enquiry stands       for issuance of      a second

Commission. Nowhere it is stated in Rule 10 or 12 the

requirement of setting aside earlier one or to discard the

earlier one.     Setting aside of a commission report or

varying a commission report, stands provided only in

Rule 14(2) which stands for issuance of commission to

make partition. The Division Bench did not consider the

purpose for which Rule 10 and 12 was enacted and also

the conspicuous absence of expression "shall form part

of record" in Rule 12 (2) and also absence of provision

either in Rule 10 or in Rule 12 for setting aside or

varying the commission report. What is applied by the

Division Bench in that decision is the public policy to have

a speedier, effective and cheaper administration of

R.S.A.No.733/2004               37

justice and not on the basis of the scheme of Order XXVI

CPC and the rules thereunder.          In fact what is held in

that decision is that the Court can appoint a second

commission for further enquiry only if the Court has

reason to dissatisfy with the proceedings and report of

the first commissioner for the reasons stated.

      35.        It is well settled that a judgment has to be

read in whole to appreciate what actually is rendered, the

ratio/rationale and the principle applied, in order to

understand what is actually given by the judgment/

adjudication     thereof.    There    may     be  so    many

observations/discussions leading to an inference        or in

arriving at a conclusion in a judgment. It is not advisable

to pick and choose one or two words or sentences and to

interpret the same apart from what is actually dealt

under the judgment.

      36.        While interpreting a judgment on the

rationale/ratio    applied     therein,   the   observations,

reasons/discussions made therein in arriving at a

R.S.A.No.733/2004               38

conclusion shall be understood not in isolation apart from

the conclusion arrived at. The observations must be read

in the context in which they appear to have been stated

and observation made in the judgment should not be

read in isolation apart from the conclusion arrived

therein. Further the observation shall not be substituted

in place of conclusion arrived at, there cannot be any

uniform application of rules governing interpretation of

statutes and interpretation of judgment/orders. They are

governed by different fields of interpretation.

      37.         In Union of India and another v. Major

Bahadur Singh [(2006) 1 SCC 368] the Apex Court

settled the following in the matter of interpretation of

judgments.

               "Observations of the courts are neither to be

       read as Euclid's theorems nor as provisions of the

       statute and that too taken out of their context.

       These observations must be read in the context in

       which     they  appear    to  have    been   stated.

       Judgments of the courts are not to be construed as

       statutes.     To interpret words, phrases and

R.S.A.No.733/2004               39

       provisions of a statute, it may become necessary

       for judges to embark into lengthy discussions but

       the discussions is meant to explain and not to

       define."

      38.        Then again in Nair Service Society v.

State of Kerala [(2007) 4 SCC 1], it was held by the

Apex Court that for construing a judgment, it must be

read in its entirety.

      39.        In Bombay Dyeing & Mfg. Co. Ltd. v.

Bombay Environmental Action Group and others

[(2006) 3 SCC 434] : [AIR 2006 SC 1489], the

position stands further reiterated as follows:

      "Judgment are required to be read in their entirety.

      A    judgment cannot be read as           a  statute.

      Construction of a judgment should be made in the

      light of the factual matrix involved therein. What is

      more important is to see the issues involved therein

      and the context wherein observations were made.

      Any observations made in a judgment should not be

      read in isolation and out of context."



      40.        While applying the above said principle in

interpreting the judgment in Swami Premananda

R.S.A.No.733/2004           40

Bharathi's case the observation made by the Division

Bench by importing application of public policy in order to

have a speedy disposal, effective time management and

cheaper administration of justice has to be understood in

that context. The conclusion arrived at by the Division

Bench is that "only if the court has reason to be

dissatisfied with the proceedings and report of the first

commissioner for reasons stated, it can appoint a second

commission for further inquiry and that is a condition

precedent. The condition precedent is the dissatisfaction

of the proceedings and report of the first commission.

So, in fact, the position rendered in that decision does

not have any inconsistency with the earlier view taken in

Hydrose v. Govindankutty [1981 KLT 360] and

Ummer v. Muhammed [1983 KLT 258].

      41. The question of setting aside of          earlier

commission report before issuing a second commission

would arise only in case of commission issued for

effecting partition.    In all other cases there is no

R.S.A.No.733/2004            41

necessity, requirement or need to set side the earlier

report, before issuing a second Commission either for the

very same purpose or for some other purposes. No such

mandate is included any where in Rule 1 to 13 to Order

XXVI. At the same time, we cannot shut our eyes into

certain realities which are   prevailed in certain part of

Kerala in issuing commissions one after another. There

are cases of issuing three or four commissions for the

very same purpose.          Such practice definitely is

detrimental to the speedy disposal of the suit and

cheaper administration of justice.   Both are detrimental

to the system and hence has to be deprecated. But at

the same time, it does not mean that the court is not

empowered to issue one or two or three commissions if

the situation warrants so.

      42. The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal

R.S.A.No.733/2004             42

position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.

R.S.A.No.733/2004           43

(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition

R.S.A.No.733/2004             44

precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.


(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

      43.        On coming into the impugned judgment,

the first appellate court proceeded in the matter under a

mistaken impression that the second commission can be

issued only after setting aside the first one, relying on

the decision rendered in Swami Premananda Bharathi's

case(supra). Further, the first appellate court committed

a serious error in overlooking the settled position that

when there is mistake or difference in the survey

number, description of boundary will prevail over, the

property. Ext.C1(a) is seen prepared correctly identifying

and locating item (1) property having an extent of 10

cents    in Survey No.164/3.     The properties lying on

either side belongs to the defendants. The defendants

did not have any case that they had obtained title over

10 cents of property comprised in Survey No. 164/3

under any document of title but simply advanced a case

that the same will form part of their large extent of


property and at the same time they advanced a case

that the description and extent       as stated in their

document of title are not correct. So no much reliance

can be given to the case advanced by the defendant that

the 10 cents of property comprised in survey No.164/3

will form part of their large extent.     No satisfactory

evidence       much less any evidence adduced in that

behalf by the defendant, which was also over looked by

the lower court. On the other hand, the document of title

produced by the plaintiff and the boundary description

entered therein fully and completely tally with Ext.C1 (a)

plan in respect of the 10 cents of property comprised in

survey No.164/3. The only defect in the case advanced

by the plaintiff is that as per their document of title in

Ext.A8, the sub division number was wrongly/ mistakenly

entered for which a correction    deed was executed as

Ext.A9. As discussed earlier, even without a correction

deed or correcting the sub division number or the survey

number if it was found that there is a mistake, crept in


the survey number, the court has to look into the

boundary description and the    boundaries entered in the

document and to identify and locate the property based

on the boundaries.       The said settled principle was

overlooked or rather ignored by the first appellate court.

Added by the fact that the defendant did not have any

consistent case or acceptable version regarding the

acquisition of right title or interest over   item No.1

property.     On the other hand, on either side of    item

No.1, the property belonging to the defendant situated.

No other way is available to the     property of plaintiff

scheduled in the suit as item No.2.

      44.    So the material facts which are relevant for

consideration in the adjudication of dispute involved in

the suit have been not considered either by the trial court

or by the appellate court which has resulted in the

miscarriage      of justice which   would    attract   the

interference by this Court and we are doing so,         by

setting aside the decree and judgment of both the trial


court and the first appellate court. The matter is

remanded back to the first appellate court to have a fresh

consideration of facts and evidence involved in the case

in accordance with law in force. We are also constrained

to issue direction to the first appellate court to have an

earlier disposal of the appeal within a time schedule of

three months from the date of receipt of copy of this

judgment, as the litigation was started in the year 1988.

      No costs. The parties shall appear before the first

appellate court on 5.1.2017.

                                   Sd/-




                         P.R.Ramachandra Menon
                                  Judge

                                   Sd/-

                              P.Somarajan
                                 Judge

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