As to the fee for execution of a civil Court commission, the Court is to fix a sum commensurate with the difficulty and importance of the work done. It is postulated that real work has been done. If it can be predicated that only nominal or worthless work has been done, manifestly there can be no payment at all--the Court cannot order payment of a litigant's money without return nor make a gift of it to a charlatan who has only made a pretence of executing a commission or who undertook it though patently unequal to it.
5. No doubt in order to calculate the amount of the fee of a civil Court commissioner, the method of time is sometimes resorted to but that does not give any right to payment according to time, since there is always the understanding that the commissioner possesses the knowledge and puts forth the exertion requisite to execute the commission efficiently and has in fact executed the same in a work-manlike manner. The remuneration is not for labour expended but for an efficient piece of work. If, as in the present instance, he fails in the respects mentioned and merely executes the commission nominally, he is not entitled to any fees. The position of a civil Court commissioner is entirely different from that of a legal practitioner at the Bar who may be supposed to receive the fees stipulated irrespective of efficiency. Even if the commissioner is a pleader, it is as a commissioner and not as a pleader that he is remunerated by the Court.
6. It is not right to extend any indulgence to inefficient commissioners whether they are pleaders or professional surveyors. Indeed it is incumbent on the Court scrupulously to protect the person who has deposited money towards a commissioner's fee and all the more since he is powerless to protect himself against the commissioner. In particular, one or more payments are made subject to check and adjustment when the Court has all the materials before it. It is clear that prior to that time the Court cannot order any but a provisional payment and actually on 14th September 1931, the office gave warning that an objection to the report was about to be filed by the defendant. The parties dare not object to such payments because they are apprehensive that the commissioner, if he is examined as a witness, as is often the case, may through resentment depose to their prejudice. But such payments are merely advances subject to adjustment. There could be no greater mistake than to suppose that they are final or are not subject to an order for refund when the fact transpires that the money has not been earned.
7. In the present instance the petitioner both undertook a commission for which he was most obviously unfit and failed for that reason, laziness and negligence to execute it more than nominally, and it is entirely reasonable that the Court should see that the party who provided the money, is not prejudiced by the Court's action in giving him the commission. The petitioner received the commission and also the advances of fees upon the implied understanding that the Court had the fullest right to adjudicate on his work and, within limits prescribed, to pay him the fee which his work was worth and make him, if so advised, refund the whole or part of the advances as the case may be. Apparently civil Court commissioners are attempting to form themselves into a body claiming special rights as against the Court and to bring pressure to bear on the Court to be indulgent to them at the cost of the litigant to the great prejudice of the litigant and the harassment of the Court.
8. It is rarely proper to interfere in their favour. In the present instance the order impugned is certainly sound and it is not even necessary to call on the opposite party.
AIR1934Pat316
IN THE HIGH COURT OF PATNA
Decided On: 10.04.1934
Appellants: Surendra Nath Sen Gupta
Vs.
Respondent: Secy. of State
Vs.
Respondent: Secy. of State
Macpherson, J.
1. The petitioner seeks revision of the order of the Subordinate Judge of Saran to refund the fee paid to him as a civil Court commissioner, to whom a commission was issued on 8th June 1931 under Order 26, Rule 9, Civil P.C., to prepare a map and report whether the disputed land in title suit No. 5/5/7 of 1930/32/33 forms part and parcel of the plaintiffs' village Sabhpur Darasikoh according to the Revenue Survey map of 1843-44 and Diara Survey map of 1863-64 and to show in the same map the position of the disputed land according to the survey of 1920 for Islands Nos. 31 and 35 and who was directed to hold a local investigation so as to prepare the map. He submitted his report on 26th August 1931 with a bill for Rs. 452 net and a request that Rs. 190 the amount in deposit (the petitioner's estimate of fee was on 3rd July Rs. 200), be paid to him and the plaintiffs be called upon to deposit the balance, as their number would make it difficult to realize the amount subsequently.
2. In September the petitioner who had received an advance of Rs. 100 was paid Rs. 90 more and on 15th September the Subordinate Judge Mr. E.A. Khan directed that Rs. 250 more be deposited for the present. The record as sent up does not show further payments but Mr. Mitra at the Bar states that petitioner has drawn Rs. 324 in all. Objection to the report was taken on behalf of the defendant whereupon the Additional Subordinate Judge Mr. Fath held a careful inquiry and found that the work had been done in a thoroughly unsatisfactory and careless manner and was patently inaccurate, the petitioner having taken no precautions to ensure accuracy: incidentally he had not tested his fixed points, though the land was diara; he took lines in the plain table survey which were more than 40 chains in length; he did not close the circuit; and he took to the process of enlargement rather than reduction of map to bring the maps to the same scale and there were other irregularities.
3. The Court's order of 25th April 1932 was as follows:
Commissioner's report is set aside. The commissioner is directed to do the work over again for the same fees which he has already received. If he is not inclined to do the work over again, he must refund the money when a fresh man will be sent.
The petitioner next asked for fees for the work he was called upon to do and desired to evade working in the hot weather. The protest was rejected and the writ of commission was re-issued though the defendant wished it to go to a more competent person. The petitioner failed to go to the land again before the rains on various excuses. The petitioner submitted a further report on or before 22nd September which, on the defendant again objecting, came up for hearing before the Subordinate Judge Babu Gajadhar Prasad on 15th March 1933 when the following order was passed:
The work to be done by the commissioner was to inspect the locality and show the position of the disputed land in comparison with certain maps. It was found by the Court that the map prepared by the commissioner was utterly unreliable and that the fixed points taken by him could not be depended upon. It is to be very much regretted that the commissioner did not go to the land again and without taking any measurements he submitted a second report on the basis of a comparative map supplied to him by the plaintiff. His actual report consists of a few lines but it comprises many pages of irrelevant and funny things which are mostly personal observations and comment. The report obviously indicates a state of mind that was dominated by personal feelings. The report cannot be accepted. It is utterly useless and it is set aside. The commissioner shall refund the fee that had been paid to him by the end of this month.
The commissioner then obtained the present rule. Incidentally one result is that a long-pending suit had been held up for a year. Mr. Mitter on behalf of the petitioner contends in reliance on Bhagwat Sahai v. Brijbhushan AIR 1920 Pat 555 and Bhubneswar v. Sourendra Civil Rev. No. 630 of 1931 that this Court may interfere in revision and should do so as both Subordinate Judges are wrong in rejecting the reports of the petitioner as commissioner.
4. As to the decisions cited, they contain several expressions of opinion which I should hesitate to accept, but assuming that this Court could in an appropriate case interfere in revision with the orders of subordinate Courts repressing the demands of commissioners in respect of fees, either because they are excessive or because they are altogether unearned, I am of opinion that the present case in no way falls within the provisions of Section 115, Civil P.C. The Subordinate Judges not only acted with jurisdiction but passed orders which unquestionably were sound on the merits.
As to the fee for execution of a civil Court commission, the Court is to fix a sum commensurate with the difficulty and importance of the work done. It is postulated that real work has been done. If it can be predicated that only nominal or worthless work has been done, manifestly there can be no payment at all--the Court cannot order payment of a litigant's money without return nor make a gift of it to a charlatan who has only made a pretence of executing a commission or who undertook it though patently unequal to it.
5. No doubt in order to calculate the amount of the fee of a civil Court commissioner, the method of time is sometimes resorted to but that does not give any right to payment according to time, since there is always the understanding that the commissioner possesses the knowledge and puts forth the exertion requisite to execute the commission efficiently and has in fact executed the same in a work-manlike manner. The remuneration is not for labour expended but for an efficient piece of work. If, as in the present instance, he fails in the respects mentioned and merely executes the commission nominally, he is not entitled to any fees. The position of a civil Court commissioner is entirely different from that of a legal practitioner at the Bar who may be supposed to receive the fees stipulated irrespective of efficiency. Even if the commissioner is a pleader, it is as a commissioner and not as a pleader that he is remunerated by the Court.
6. It is not right to extend any indulgence to inefficient commissioners whether they are pleaders or professional surveyors. Indeed it is incumbent on the Court scrupulously to protect the person who has deposited money towards a commissioner's fee and all the more since he is powerless to protect himself against the commissioner. In particular, one or more payments are made subject to check and adjustment when the Court has all the materials before it. It is clear that prior to that time the Court cannot order any but a provisional payment and actually on 14th September 1931, the office gave warning that an objection to the report was about to be filed by the defendant. The parties dare not object to such payments because they are apprehensive that the commissioner, if he is examined as a witness, as is often the case, may through resentment depose to their prejudice. But such payments are merely advances subject to adjustment. There could be no greater mistake than to suppose that they are final or are not subject to an order for refund when the fact transpires that the money has not been earned.
7. In the present instance the petitioner both undertook a commission for which he was most obviously unfit and failed for that reason, laziness and negligence to execute it more than nominally, and it is entirely reasonable that the Court should see that the party who provided the money, is not prejudiced by the Court's action in giving him the commission. The petitioner received the commission and also the advances of fees upon the implied understanding that the Court had the fullest right to adjudicate on his work and, within limits prescribed, to pay him the fee which his work was worth and make him, if so advised, refund the whole or part of the advances as the case may be. Apparently civil Court commissioners are attempting to form themselves into a body claiming special rights as against the Court and to bring pressure to bear on the Court to be indulgent to them at the cost of the litigant to the great prejudice of the litigant and the harassment of the Court.
8. It is rarely proper to interfere in their favour. In the present instance the order impugned is certainly sound and it is not even necessary to call on the opposite party.
The petitioner for his own convenience made the defendant alone the opposite party. When the case came up for hearing, it was directed that notice should be served on the numerous plaintiffs who were certainly interested and they also have now appeared. Mr. Gaindhari Singh on their behalf takes the position that they ought not to suffer on account of the inefficiency of the petitioner as commissioner. When Mr. Mitter on behalf of the petitioner pressed him to admit that plaintiffs had no objection to the petitioner retaining the commissioner's fee and again taking up the work, there became evident the apprehensiveness of the litigant to which allusion has been made.
9. It would manifestly be unwise to entrust the work any further to the petitioner; a commissioner of superior qualifications and reliability is required and in fact such an appointment has already been made. The rule is discharged with costs: pleader's fee to plaintiffs two gold mohurs and to the defendant who appeared at both hearings, four gold mohurs. Let the record go down forthwith so that the commission may be executed before the rains and the suit disposed of with the least possible delay.
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