MUNNER HAZZAM Vs. GYASUDDIN

JUDGEMENT

(1.) Having heard Mr. Birendra Dixit, the learned counsel for the applicant on this review application, I find that it cannot be said that my judgment dated 21st January, 1981 in the second appeal, suffers from any such error as to afford a ground for review. The only point raised was that the finding recorded by me that the Com missioner's report in the earlier suit, of which a certified copy bad been filed in the suit giving rise to the present second Appeal, was relevant evidence under Section 35 of the Indian Evidence Act I need not repeat the reasons given by me for taking the view which I did. Certain cases were cited before me. The first case, State v. Ram Srz A. I. R. 1976 All. 121 is clearly distinguishable and does not advance the applicant's case and further. The next case cited by the learned counsel was that of Ibrahim Beg v. Mst. Aziman A. I. R. 1935 Oudh 192. That case does help the applicant in so far as it was held there that a Commissioner appointed by a Court with special directions to make a particular inquiry into the parti cular facts of a case is not a person performing 'a duty specially enjoined by the law of his country in which such book, register or record is keot. ' Further an earlier Oudh decision in Jagdat v. Sheopal A. I. R. 1927 Oudh 323 was distinguished in that case on the ground that the Kanungo had been appointed as a Commissioner in the earlier case. It was observed that the report in the earlier case was thus made by a public servant, namely, a Kanungo in the discharge of his official duty, he having been called upon bv a Magistrate to make an inquiry of a certain complaint filed in the Magistrate Court. With respect I am unable to see any difference between a Kammgo or an Amin or as to that even an Advocate or a private individual appointed as a commissioner by a Court and acting as such in due discharge of the duties entrusted to him by a Court. Under Section 21 of the Indian Penal Code, a public servant is defined to include every officer of a Court of Justice including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any prorjert?, or to execute anv judicial orocess. or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised by a Court of justice to perform any of such duties, with respect I would prefer to relv on the earlier decision of the 0udh Chief Court in Jagdat v. Sheopal (supra ). Reliance was next placed on a Punjab decision of the Lahore High Court in Ghanaya and others v. Mehtab and others A. I. R. 1934 Lah. 890. The head note of that case shows that the decision of the Oudh Chief Court in Jagdat v. Sheopal (supral )and of a Division Bench of this Court in Baldeo Das v. Gobind Das A. I. R. 1914 All. 59 were dissented from by the Lahore High Court in that case. With respect I am bound by the Bench decision of this Court Lastly the decision of the Calcutta High Court in Sarat Chandra Rakhit v. Sarala Bala Ghosh and others A I. R. 1928 Cal. 63 was cited. That case is no authority for the proposition that the record of a Commissioner in an earlier suit is not rele vant in the subsequent suit under Section 35 of the Indian Evidence Act. The judgment in that case shows that the report and the map were not taken into evidence as contemplated by the Civil Procedure Code, but they were taken in under the Evidence Act on being proved by the person who made them, that is a pleader commissioner who was examined in the case and he deposed that the map and the report were made by him and they were themselves marked as exhibits. It was further observed in that case that objection to the admissibility of the report and the map of the commissioner was not taken at the earlier stage of the trial and the objection was overruled. In case the report of a Commissioner appointed in a case is confirmed, it becomes admissible as evidence in that case, and a part of the record of that case. I have observed in the judgment that in case the Commissioner's report was not confirmed in the earlier suit, it would be of no evidentiary value: "and even if it was con firmed in the earlier suit, it might have been open to the parties who contested the report to call for the commissioner for cross-examination in order to test its correctness or to show that it was incorrect by some other evidence but it cannot be brushed aside out of hand simply because it was a report made in an earlier suit and the party who relied upon it did not produce the commis sioner to prove that report in the present suit. As to the inspection note of the Presiding Officer, the report could be used to judge the reliability of evidence of witnesses in the present case. " I may add that, being certified copy of a document on the record of the earlier suit it proved itself; it was not necessary to call the com missioner as a witness to prove it. This application for review is accordingly dismissed. .