SHAJITHA Vs. AKBAR

JUDGEMENT

(1.) Against Ext.P7 order, the 2nd defendant came up. It is an order passed by the trial court refusing to set aside the report of the Commissioner submitted under Rule 10 of Order XXVI C.P.C. based on the legal position settled by a Division Bench of this Court in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041).

(2.) The question came up primarily is regarding the permissibility of the court to set aside or remit back a Commissioner's report submitted under Rule 9 or 10 of Order XXVI C.P.C.. The decision rendered by a Division Bench of this Court on an earlier point of time in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) and subsequent decisions of a Single Bench of this Court in Yudathadevus v. Joseph (2021(5) KHC 668) and a coequal Bench of this Court in Laly Joseph v. Francis (2023 (2) KLT 516) were brought to the notice of this Court. It appears that the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (AIR 2005 SC 752) and a subsequent three Judge Bench of the Apex Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86) was not followed in the abovesaid two subsequent decisions and even the matter was not referred to a larger Bench.

(3.) The scope and ambit of Order XXVI C.P.C. was discussed in detail by the Division Bench of this Court in Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) and laid down the legal position in reference to the legal position covered by Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144), Chinmaya Saha v. Renuka Halder (AIR 2016 Cal.33 = 2016 KHC 2319) Dr.Subramonian v. K.S.E.B. (1987 (1) KLT 355), Thottama v. C.S. Subramaniyyan (AIR 1922 Mad. 219), Shib Charan Sahu & others v. Sarda Prasad & another (AIR 1937 Pat. 670), Union of India and another v. Major Bahadur Singh ((2006) 1 SCC 368), Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]. The legal position laid down by an earlier Division Bench in Swami Premananda Bharathi's case (supra) was explained and distinguished by the Division Bench in Francis Assissi's case (supra) by relying on the legal position regarding interpretation of judgment laid down by the Apex Court in Union of India and another v. Major Bahadur Singh [(2006) 1 SCC 368], Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]. Paragraphs 32 to 40 of the said judgment (Francis Assissi's case) are extracted below for reference: