JAGDISH SINGH Vs. AMRITSAR IMPROVEMENT TRUST AMRITSAR

JUDGEMENT

(1.) This revision petition has been filed against the order dated 3.3.1990 of the Additional District Judge, Amritsar, dismissing an application filed by the petitioner for producing his evidence. The necessary facts of the case are that the petitioner challenged the validity of the order for demolition of the building before the Additional District Judge, Amritsar, on the ground that no proper show-cause notice was issued. It was further contended that no speaking order was passed and no opportunity of personal hearing was granted. When the appeal was pending before the Additional District Judge, an application under section 384 of the Punjab Municipal Corporation Act, 1976 for leading evidence, was filed. According to the petitioner, the building was old and it was in the same condition as it was in the year 1942. It was contended before the first Appellate Court that only minor repairs for the safety of the building including white washing was conducted and that no new construction has been made. An opportunity of leading evidence was claimed and it was prayed that after grant of such an opportunity, the appeal may be decided on merits. The Additional District Judge dismissed the application primarily on the ground that one Ms. Rita Gupta was appointed as Local Commissioner and she has submitted her report on all the points which she was required to investigate. It was observed, that since a report had already been submitted by the Local Commissioner, the Additional District Judge was of the view that no case for permitting the petitioner to lead evidence was made out under the provisions of section 384 of the Punjab Municipal Corporation Act.

(2.) In this revision petition, it was argued by Mr. Sumeet Mahajan, that since the building of the petitioner is going to be demolished in pursuance of the order for demolition which was subjected to challenge before the appellate court, it was necessary to grant the petitioner an opportunity to lead evidence and that his client would conclude his entire evidence on one date of hearing. On the other hand, Mr. N.B.S. Gujral, Advocate, learned counsel for the respondent, while opposing the revision petition, strongly argued that no useful purpose is going to be served by permitting the petitioner to lead evidence as Local Commissioner has given a clear-cut report and that petitioner's objections to the report would be decided if the same have been filed. If the objections have not been filed and the opportunity is asked for it will be for the appellate Court to grant an opportunity if a case is made out. In short, the contention of the counsel for the respondent is that once a report from an independent agency has been given, no opportunity should be granted to the petitioner to lead his evidence . After hearing the counsel for the parties, I am of the view that the petitioner is entitled to the grant of an opportunity, both in law and in the interest of justice. Order 76 Rule 9 of the Code of Civil Procedure, 1908, no doubt, contemplates for the appointment of a Local Commissioner for elucidating certain facts. The appointment of such a Local Commissioner, however, does not mean that such a report would be final and conclusive and binding either on the parties or the Court. Such a report has to be assessed in the light of other evidence and material on the record, like any other piece of evidence. If the petitioner is not granted an opportunity of leading his evidence, he would be deprived of his valuable right to rebut the report which can only be described as a piece of evidence like other evidence.

(3.) The case can be examined yet from another angle. The report of the Local Commissioner after the filing of the objections can be relied upon or may be set aside if there is force in the objections. The party against whom report has come on the record of the case would be well within its right to disprove the correctness of the report by leading his own evidence which may include, in appropriate cases, the expert evidence. For instance, if it has been reported by the Local Commissioner who may not be an expert that the building is in a dilapidated condition or that there had been additions in the old building by raising new construction, the party aggrieved against the report may lead expert evidence to show to the contrary. If such an evidence is disallowed only because the report of the Local Commissioner has been brought on the record of the case, the court would be deprived of examining such evidence which may go to the root of the case. In view thereof, this court is of the considered opinion that an opportunity should normally be granted to the party to lead evidence where no evidence has been brought on the record of the case before the report of the Local Commissioner has been given. However, the position may well be different if evidence has already been recorded and the report of the Local Commissioner has been made available to the court only in order to appreciate the evidence produced by the parties. In present case, it is not the case of the respondents that evidence has already been led by the parties after service of show cause notice.