SARDAR SINGH Vs. CHANDAN AND OTHERS

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 28th November, 1981 passed by the learned Subordinate Judge IInd Class, Gurgaon, whereby he accepted the objections preferred by the respondents against the report of a Local Commissioner and set aside the report. After the Local Commissioner had been appointed, the Commissioner sent notices to the parties concerned to appear on the spot on the date fixed in the notices so that he could execute the Commission. One of the respondents refused to accept notice. The Commissioner, however, went to the spot and in accordance with the directions issued by the learned trial Court made measurements and submitted his report. The respondents filed objections against this report on the point that under rule 18 of Order XXVI, Civil Procedure Code, it was for the Court to issue notices to the parties to appear before the Commissioner and that the Commissioner had not fixed any pucca points for making the measurements. On the second point, serious controversy has been raised by the Learned Counsel for the parties but I do not wish to pronounce on this point at this stage.

(2.) IT is argued at the Bar that there is some conflict of opinion about the interpretation of rule 18, Order XXVI Civil Procedure Code which has caused some confusion and the matter deserves to be clarified by this Court. In Maroli Achuthan v. Kunhipathumma : A.I.R. 1968 Ker 28, a Division Bench of that Court had an occasion to consider this provision. It was held that rule 18 of Order XXVI, Civil Procedure Code required was that the parties be given an opportunity of being present before the Commissioner before he makes observations on the spot to make a report to the Court and that where the Commissioner, instead of the Court, himself had issued summonses to the parties concerned, the report of the Commissioner should not be set aside on that score. Similar view was taken in Suraj Pal v. Smt. Meera alias Merhia : A.I.R. 1973 All. 148. On the other hand, in Pedda Seetharamanna : A.I.R. 1962 A.P. 84 a contrary view was taken. Therein it was held that under this provision it is for the Court alone to issue notices to the parties for appearing before the Commissioner. Rule 18 Order XXVI of the Code of Civil Procedure, reads as under : - -

(3.) SINCE the principal ground on which the learned trial Court declined to accept the report of the Commissioner does not appear to be tenable in law, it is open to the petitioner to contend that I should set aside its order in exercise of revisional jurisdiction, but a perusal of the order shows that the new Commissioner has been selected at the request of the parties. In this situation, the petitioner can only make a grievance that he is being burdened with unnecessary expenses. To redress this grievance, I order that the respondents should pay a sum of Rs. 300/ - to the petitioner as costs and the commission should be executed by Naib Tehsildar (Loans), Gurgaon, as ordered by the learned trial Court, at the costs of the respondents. It is further clarified that if the person incumbent of this office is transferred, it shall be open to his successor in office to execute the Commission without any fresh orders on this point. The petition stands disposed of accordingly.