MOIDU Vs. LEKSHMI AMMA

JUDGEMENT

(1.) A stitch in time saves nine, and this protraction of the litigation by a Civil Revision Petition could have been easily avoided if only the simple process of setting aside the first commission report had been done by the Trial Court before issuing the second commission or the Court and Commissioner had observed the rule of giving notice before doing anything affecting his interest.

(2.) It is admitted that the commissioner, when he inspected the property on the first occasion to prepare a plan and report this suit involves identification of plots of land claimed by the plaintiffs and the 1st defendant did not give notice to the affected party because he was told by the plaintiffs that there was some urgency. On the second occasion, for assessing damages, the commissioner inspected the property and then also he could not and did not give notice to the most vitally interested defendant. The third time another commissioner was deputed to assess the damages additionally caused, according to the plaintiffs, but he proceeded on the footing that there was an earlier plan and report made by his predecessor commissioner. The grievance of the 1st defendant, who has come up in revision, is that the plan and report which have a vital bearing on the decision in the case were prepared as a result of an inspection of which he had no notice. He rightly relies upon O.26 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, O.26 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. O.26 R.18, CPC. enshrining as it does a wholesome principle of natural justice, is treated as imperative. Under O.26 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 O.26 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 ...............The commissioner will prepare a fresh plan also showing the various; plots claimed by the parties". Virtually the learned Munsiff has directed the second commissioner to inspect the property, to draw up a plan and make a report showing the rival contentions. This should satisfy the parties in the normal course. However, the point taken is that so long as the first report and plan remain in tact the Court will be confronted, at the time of the trial, with two reports and plans, one got up behind the back of the defendants and the other where both sides have been given notice. The proper thing to do, when a second commission is allowed by the Court to do the same work over again as here, is to set aside the first report and plan since successive commissions without the earlier ones being set aside have been deprecated by at least two rulings of the Madras High Court reported in Ambi v. Kunhikavamma ( AIR 1929 Mad. 661 ) and Kunhi Kutti Ali v. Mohammad Haji ( AIR 1931 Mad. 73 ). In this case there is no allegation of bias against the first commissioner. 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 ) takes the view that the issue of a second commission on the same subject matter without setting aside the report of the first commissioner is only an error or irregularity which does not per se affect the merits of the case and therefore cannot in itself be a ground to set aside a decree. We have not reached the stage of a decree and a conscious irregularity need not be committed at this stage when it can be set right. Therefore, the appropriate course to adopt is formally to set aside the report and plan submitted by the first commissioner Shri Gopala Kurup, Advocate, and direct the second commissioner Shri T. P. Sankaran Nair, Advocate, to prepare a plan and make a report after giving notice to all the parties and without reference to the earlier plan and report.