LALY JOSEPH Vs. FRAMCIS

JUDGEMENT

(1.) This original petition has been placed before us based on a reference order of the learned single Judge. The reference was necessitated as the learned Single Judge observed that a coordinate Bench of this Court in Francis Assissi v. Sr.Breesiya and Others [2017 (1) KLT 1041] held that a commission report can only be set aside or varied under Sub-Rule (2) of Rule 14 of Order XXVI of the Code of Civil Procedure (for short, the Code). This appears to have created a considerable amount of confusion in the District Judiciary in regard to the procedure to be adopted regarding setting aside or remitting the commission report on such application being made before the court.

(2.) Another learned Single Judge in a recent judgment in Yudathadevus v. Joseph [2021 (5) KHC 668] opined that the judgment in Francis Assissi's case (supra) is per incuriam and it is not a binding precedent. The learned Single Judge after adverting to all decisions in this regard, was of the firm view that the court has the necessary power to set aside the commission report or remit the commission report. The learned Single Judge also placed reliance on the earlier Division Bench judgment, prior to the judgment in Francis Assissi's case (supra) to arrive at the conclusion as above.

(3.) Order XXVI of the Code broadly refers to commissions. It further classifies commissions under different heads based on the purpose such as the Commission to examine witnesses, the commission for local investigation, the commission for scientific investigation, the commission for performance of a ministerial act, the commission for the sale of movable property and the commission to examine or adjust accounts. A residuary provision in the nature of general provision is also incorporated under Order XXVI of the Code in regard to the expenses of the commission to be paid into court, powers of the Commissioner, questions objected to before the Commissioner and attendance and examination of witnesses before the Commissioner. We, at the outset, note that the classification of issuance of commission under different heads is necessary to understand the legal issue involved. If the classification is not strictly adhered to, it may create confusion as was noted in the reference order.