B L NIJHAWAN Vs. SATISH RAY KAPOOR

JUDGEMENT

(1.) The petitioner by this civil revision petition is assailing the order dated 15.4.1994 passed by Mrs. Seema Maini, Sub Judge, Delhi in suit No.560 of 1978, whereby she allowed the application moved by the respondent under order 26 rule 10 C.P.C. and permitted the Local Commissioner's report together with the documents, to be admitted in the evidence:

(2.) The petition raises a short but important question with which the civil courts are frequently confronted viz., whether an ex parte report of the Local Commissioner can be admitted in evidence in terms of order 26 rule 10(2) C.P.C. without the same being proved? The answer to this question turns on the provisions of order 26 rule 10 C.P.C. and order 26 rule 18 C.P.C. Before examining the legal provisions, the facts in brief of the case may be recapitulated:-

(3.) The learned counsel for the petitioner contends that the Local Commissioner's inspection was done in the petitioner's absence. It is denied that any of petitioner's employees were present during the inspection and had refused to sign the report. It is urged that the Commissioner's report is absolutely vague and lacking in material particulars in this regard. No names of the employees or their designation has been mentioned. As regards the legal position Mr. Ishwar Sahai, Senior Advocate appearing for the petitioner has submitted that the provisions of order 26 rule 10(2) C.P.C. cannot be invoked in the instant case, since the appointment of the Local Commissioner was ex parte and no notice even after the appointment was issued to the petitioner regarding the said appointment or the time and date of the inspection. Not only this the Local Commissioner also failed to issue notice to the petitioner and other parties of his proposed inspection. This according to the counsel was completely in contravention of the mandate in order 26 rule 18 C.P.C. which required the Court to direct the parties to appear before the Commissioner in person or by their agents or leaders. In the absence of such notice, the report of the Local Commissioner and the evidence taken by him cannot be admitted in evidence in terms of order 26 rule 10(1 )(2) C.P.C. In these circumstances, the only course open is to produce the Local Commissioner in court for proving the report by leading his evidence to enable the petitioner to cross examine the Local Commissioner regarding the report. This was essential to establish the veracity thereof. Mr. Sahai further submitted that since the report was ex parte and in contravention of provisions of order 26 rule 18 C.P.C. there was no question of the petitioner filing objections to such a report. No adverse inference could be drawn from the absence of objections. In support of his contention Mr. Ishwar Sahai relied on a Division Bench judgment of this Court in Jamil Ahmed Taban and others Vs. Must. Khair- U1-Nisa and others reported at AIR 1970 Delhi 205 and followed in case reported at AIR 1988 Orissa 52. A Division Bench of this Court held that in case of non- compliance with the mandatory provisions of order 26 rule 18 C.P.C., the Local Commissioner's report was without jurisdiction and the report cannot be read in evidence. Para 6 of the judgment is as follows:-