K VISWANATHAN Vs. D SHANMUGHAM MUDALIAR

JUDGEMENT

(1.) By an earlier order of this Court dated 26th October, 1984, an order made by the District Munsif scrapping the report of the Commissioner at the instance of the respondents-defendants and appointing a fresh Commissioner to note down the physical features of the spot was set aside. The matter was remitted back to the District Munsif to deal with it keeping in mind the provision in Order 26, rule 10(3) of the Code of Civil Procedure. When the matter went back, the Principal District Munsif, Salem, reiterated his earlier orders scrapping the report of the Commissioner making an observation that �the court is constrained to take a view that the report is incomplete in the sense that it does not contain material particulars�. When reference was made to the report not containing certain material particulars, the reference was to the fact that the Commissioner had failed to note the features notified to him in the memo of instructions given by the defendants.

(2.) When the civil revision petition came up for admission, a report was called for as to how the Principal District Munsif reiterated his earlier order instead of complying with the directions of the Court given in C.R.P.No.4883 of 1984 by the order in which the matter was remanded to him. The District Munsif made a report that he understood the previous order as meaning that �there should be specific mention that the Court is not satisfied and hence the report stands scrapped.� According to the District Munsif, he had now made it clear in the second order that the report was incomplete in the sense that it did not contain material particulars and therefore it was scrapped. The explanation and the order impugned in the civil revision petition overlooks the fact that under Order 26, rule 10(2), C.P.C. the report of the Commissioner is evidence in the suit and forms part of the records. The report of the Commissioner has therefore evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot be set at naught by scrapping the report. The effect of scrapping the report is that the report which is evidence in the case and part of the record ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according to the defendant were important does not mean that the whole report should be scrapped. Adequate provision to safeguard the interest of the parties concerned is made in sub-rule (3) of Order 26, rule 10, C.P.C. which provides that �where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. �In the previous order, specific attention of the trial Court was drawn to this provision. Instead of directing further inquiry by the same Commissioner or even by a Commissioner specially appointed, the District Munsif has directed that the report should be scrapped which is wholly impermissible by the provisions of Order 26, rule 10, C.P.C. Under sub-rule (3), there is power given to the Court to direct a further enquiry to be made. This provision itself implies that whatever report has been made must continue to remain part of the record, but if the report is lacking in particulars or is unsatisfactory, a further enquiry can be ordered. The order of the District Munsif scrapping the report is therefore wholly contrary to law.

(3.) Now it is true that the Commissioner has not noted the features which are pointed out by the defendants in a memo, dated 2nd August, 1984. The proper course for the District Munsif would have been to direct the same Commissioner, who had already sent the report to make a further enquiry with reference to the thirteen features which have been incorporated in the memo. given to the Commissioner by the defendants instead of removing the Commissioner and scrapping the Commissioner�s report. Accordingly, the order of the District Munsif scrapping the report of the Commissioner and appointed a new Commissioner is set aside. It is now directed that the District Munsif shall direct the advocate Commissioner who was originally appointed as the Commissioner to make a further enquiry and this enquiry shall be restricted to the thirteen items which are pointed out in the memo, to the Commissioner. Any further report which will be made in respect of these features will be treated as additional report of the Commissioner.