Jharkhand HC Condemns Practice Of Appointing Second Advocate Commissioner Without Reasons For Ignoring Previous Commissioner’s Report
The Jharkhand High Court made it abundantly clear that the order appointing a second Pleader Commissioner, without assigning any reasons why the report of the previous Commissioner is ignored, is not only contrary to the provisions of Order 26, Rule 10(3) but is to be condemned.
The High Court was considering a Petition filed under Article 227 of the Constitution for quashing the order of the Civil Judge whereby the Court allowed the application of the respondents-plaintiffs objecting to the report submitted by the pleader commissioner and had also directed the appointment of fresh pleader commissioner.
The Single-Judge Bench of Justice Sanjay Kumar Dwivedi asserted, “...if the Judge balances the report of one Commissioner against that of the other and expresses a preference for the view of the first Commissioner, he acts with great impropriety and contrary to what is contemplated by Order 26, Rule 10(3) of C.P.C.”
Advocate Vishal Kr. Trivedi represented the Petitioner.
The suit in question was meant for partition. The plaintiffs and defendant, respondents and petitioner herein are brothers and the suit land in question was acquired by their father from his own independent income. The father constructed a single-storey building over the suit land and remained in peaceful possession of the same before his demise in 1976. The suit decree had been passed allocating 1/3rd share to each of the brothers. Thereafter the pleader commissioner submitted a report and an objection was filed by the plaintiffs/respondents.
It was the petitioner’s case that in the absence of any reason, the pleader commissioner’s report was not accepted and a new pleader commissioner was directed to be appointed.
On a perusal of the impugned Order, the Bench observed that the Court had not accepted the said report by saying in one line that the plaintiff had serious objection with regard to shares allocated to him. The reasons had not been disclosed for not accepting the same.
The Bench explained that the reasons for superseding the first Commissioner's report must be recorded in writing by the Court. A second commission should not be issued to deal with one and the same subject unless it is thought that the report of the first Commissioner is not satisfactory in which case the earlier commission should be wiped out altogether and attention should be paid only to what is reported by the second Commissioner.
The High Court also clarified, “The order appointing a second Commissioner, without assigning any reasons why the report of the previous Commissioner is ignored, is not only contrary to the provisions of Order 26, Rule 10(3) but is to be condemned.”
Referring to the judgment of the Apex Court in Swami Premananda Bharathi V. Swami Yogananda 6 Bharathi (1985), the Bench said, “In view of above discussions, it is well settled that the Court can issue a second commission only under Order 26 Rule 10(3) C.P.C.” The Court also explained that the dissatisfaction can be before the submission of the report. But if the second commission is to be issued after the already deputed commission submitted his report, that cannot be done without setting aside the report.
Thus, allowing the Petition, the Bench set aside the impugned order and restored the petition to the file of the Civil Court.
Cause Title: Maya Ram v. Asha Ram & Ors. (Case No.: C.M.P. No. 641 of 2023)
Appearance:
Peititoner: AdvocatesVishal Kr. Trivedi, Shresth Gautam, Jai Mohan Mishra, Raj Shekhar Jha
