SILCHAR MUNICIPAL BOARD Vs. EASTERN TEA ESTATES PVT. LTD. AND SRI MAHITOSH PURKAYASTHA, EX-CHAIRMAN, SILCHAR MUNICIPAL BOARD

JUDGEMENT

(1.) REVISION Petitioner is the Defendant in a suit for declaration of title and permanent prohibitory injunction. It is aggrieved by the order passed by the court rejecting objections filed by it against the Commissioner's report.

(2.) DEFENDANT -revision Petitioner is the Silchar Municipal Board. A notice was issued to the Plaintiff -Respondent stating that it had encroached into municipal land while constructing its northern compound wall. Thereupon Plaintiff filed the suit and ultimately obtained an interim order of injunction. The suit was filed in 1962. A Commission was appointed in the first instance in 1966. The Commissioner returned the warrant unexecuted. Another Commission was issued by the court and that also became infructuous. A fresh Commission was issued in 1968. In 1973, the Commissioner's report was rejected and, a fresh Commission was issued. In 1978 the court passed an order rejecting the report and issued a fresh Commission. The Commission appeared to have misplaced the record. A fresh order was issued in 1984. The Commissioner returned the order unexecuted and yet another Commissioner was appointed who submitted a report on 23.1.83. The court adjourned the case to 2.2.85 for objections to the report and then again to 23.2.85, on which date the court passed an order rejecting the Commissioner's report and appointed a new Commissioner who filed the report in 1986. The case was posted to 16.9.86, 10.11.86 and finally to 26.11.86 for objections. On that day, Plaintiff's counsel was present. Defendant's Counsel was not present. The court heard the Plaintiff's Counsel and passed order accepting the report of the Commissioner and directed that it will form part of the evidence as per provisions in Order 26 Rule 10(2), Code of Civil Procedure on the ground that the Commissioner had issued notice to the parties informing them of the date of proposed survey and he caused the survey to be made in conformity with the direction issued by the court and the case was adjourned to 9.12.86 for hearing. After this order was passed, on the same day, Defendant filed objections praying that the report may be rejected and the Commissioner be summoned for cross -examination. The Court considered the objections on the same date and ordered that there was no scope to be dissatisfied with the proceeding adopted by the Amin Commissioner in causing survey and accordingly rejected the objections. However the Court noted that Defendants are at liberty to cross -examine the Commissioner during the bearing, if they so desired. This order is now challenged.

(3.) ACCORDING to the learned Counsel for the revision Petitioner, the court having taken up the objections later on the same date was not justified in rejecting the objections by merely observing that "I find no scope to be dissatisfied with the proceeding adopted by the Amin Commissioner in causing survey." Learned Counsel contended that the court's duty is to go into the objections carefully to come to a conclusion. According to the learned Counsel, for the Respondent there is no merit in the objections.