LALTA PRASAD JAISWAL Vs. KAMALA DEVI GUPTA

JUDGEMENT

(1.) The instant revisional application under section 115 of the Code of Civil Procedure is directed against an order of the trial court allowing the opposite party's petition in part under Order 26 Rule 9 read with Order 39 Rule 7 and section 151 of the Code of Civil Procedure in a suit.

(2.) Mr. Banerjee, learned Advocate appearing for the defendant-petitioners, challenged the impugned order virtually on two grounds first, that this commission was not necessary in view of an earlier commission report having been already exhibited at the instance of the plaintiff-respondent and secondly, that this commission was allowed by the trial court at belated stage, (the stage of taking evidence being already over) only for the purpose of fishing out of evidence. Mr. Banerjee relied on the decisions reported in (1996) 1 CLJ 332, Satish Agarwal v. Tirath Singh and AIR 1978 Cal 296, The Institution of Engineers (India) & anr. v. Bishnu Pada Bag and another.

(3.) Mr. Mukherjee, learned Advocate for the plaintiff opposite party, on the otherhand, contended that the above two decisions are clearly distingushable and do not apply to the facts and circumstances of the present case. It was submitted that the trial court itself was not satisfied with the earlier commission report that was exhibited at the instance of the plaintiff opposit party and that it was only for resolving the discrepancies/anomalies which crept into said earlier commission report that the present commission was partly allowed by the trial court. It was also submitted by Mr. Mukherjee that the court is quite competent to issue a commission at any stage of the suit. Reference was also made to the provisions of Order 26 Rule 10 sub-rule (3) which provides that the court may direct such further enquiry to be made as it shall think fit whenever the court has reasons to be dissatisfied with the report of the commission. Reference was also made to the decisions reported in 23 CalLJ 600, Tirthabasi Singha Roy and anr. v. Bepin Kumar Roy & Ors. and AIR 1981 Cal 319, Nitindra Nath Roy Chowdhury v. Subhas Chandra Kar. It was also contended that by the impugned order no case was actually decided within the meaning of section 115 of the Code. It was further contended that there was no jurisdictional error on the part of the learned trial Judge in allowing this particular commission in the peculiar facts and circumstances of this case.