iiiiE IN THE HIGH COURT OF= SIKKIM GANGTOK Civil Revision ND"6Of2006 Pentook Lepcha S/o Late Chlgey Lepcha, IVo Sangtok BIock, P.O & P.S. Mangan, Lower Dzongu, Nohh slkkJm ...... Ve,sus 1. SonamLepcha 2. Ongdup Lepcha 3. Lhendup Lepcha 4. Pen]om Lepcha allas Penzang Lepcha All sons of Late Plntso Lepcha, R/o Sanglok BIock, P.O. & P. S. Mango, Lower Dzongu, North Slkklm. Pelitloner ...... Respondents Forthe petitioner : Mr. A. J. Sharma, learned counsel. Forthe Respondents : Mr.J. K. Chandak, learned counsel assisted by Ms. Ranjita Kumari, learned Counsel. PRESENT : THE HON'BLE SHRI JuSTICE A. P. SuBBA. JUDGE. __-___------------------------------------------.-.--------------________ Daife Of Judgment : December 2 . 2006 -_-_-._-_-_-_-------------------------------------------------------___ JUDGMENT A_P_.Subba,J. This Revisl.on Petition filecl u/S.115 CPC read with Sec.151 CPC and Article 227 of the Constitution, is directed 'b6 against the order dated 19.4.2006 passed by the learned Civil Judge, North & East at Gangtok, setting aside the report of the Amin Commissioner dated 21.10.2005 in Civil SuiY No.5 Of 2005. The facts relevant for the disposal of this Revision I,.......,,,' Petition are that, the present Plaintiff/Petitioner in the year 2000, instituted a suit in the Court of the Civil Judge, North at Gangtok against the Respondents, for declaration and other reliefs in respect of piece of land covered by plot Nos. 46 and 565 situated at Santok, Sakyong Block, Lower Dzongu Elaka in the North District. The suit which was registered as Civi./ Sutl No.7 of 2000 was ultimately dismissed by the learned Court vide judgment and decree dated 20.7.2002. Aggrieved by this order the Plaintiff/Petitioner preferred an appeal before the learned District Judge, East & North at Gangtok. The learned District Judge after hearing the parties, set aside the judgment and decree passed by the learned Civil Judge (E) and remanded the matter to the ld. trial Court. Since the ld. District Judge was of the view that the contesting parties had failed to establish identity of the suit land, he directed the ld. trial Court to appoint an Amin Commissioner to ascertain the identity of the suit land and to dispose of the suit as per law. In pursuance of the direction, `.:i.......` the learned trial Court with consent of both the learned Counsel for the parties, appointed one Shri Nimzang Bhutia as Amin Commissioner. The said Amin Commissioner submitted his report on 21.10.2005. The defendant having died in the meantime, one of his sons who was brought on record as Defendant No.1, filed objection to the Amin Commissioner's report on ?.3.2006, to which the Petitioner filed his reply on 28.3.2006. The parties were then heard and vide order dated 1?.4.2006 the report of the Amin Commissioner was set aside. It is against this order that the Petitioner has come up in the present Revision Petition. 3. Mr. A. J. Sharma, learned Counsel appearing on behalf of the Petitioner and Mr. J. K. Chandak, learned Counsel assisted by Ms. Ranjita Kumari, learned Counsel appearing on behalf of the Respondents were heard. While Mr. A. J. Sharma assailed the impugned order as bad in law and unsustainable on the ground that the learned trial Court exercised a jurisdiction not vested in it by law, Mr. Chandak supported the order contending that since the report submitted was not in terms of the directions made by the Appellate Court, there was no option but to set aside the same, and, as such, there was no legal infirmity in the impugned order. The short question for consideration is, whether the learned ld. trial Court exercised a jurisdiction not vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity in .passing the impugned order and also, whether the impugned order, if it had been made in favour of the Petitioner, would have given finality to the lis or other proceedings. 5. In order to appreciate the rival submissions made by the learned Counsel, it would be necessary in the first instance to notice the ambit and scope of Sec.115 of the Code of Civil Procedure. In this regard, it is relevant to note that the scope of interference by the High Court under Sec.115 CPC as it originally stood under 1898 Code has been considerably narrowed down by successive amendments of the Code over the years with the result that the powers u/S.115 are now restricted to a considerable extent. 6. In order to appreciate the above position, it would be useful to briefly notice the legislative changes brought about by the van.ous amendments from time to time as follows - `i. ,, Sec.115 of the present Code under the original Code of 1898 stood as follows: - "115. Revis/on -The Hlgh Court may call for the record of any case whlch has been declded by any Court subordinate to such HIgh Court and ln whlch no appeal lles thereto, and lf such subordlnate Court appea,S - (a) to hove exerclsed a jurisdlc«on not vested ln 11 by law, or (b) to have falled lo exerclse a ]udsdlcllon so vesled, or fc) to have acted ln the exercise Of Its ]ursdlc«on Illegally or wllh material Irregularity, the Hlgh Court may make such order [n the case as 11 thinks fl'." The Amendment Act of 1976 renumbered the above original Section and added a proviso besides inserting a new Sub-sec(2) and appending an explanation to it. Thus, after the 1976 amendment, the Section stood as follows: - a "115. Revis/.on -(1) The High court may call for the record of any case whlch has been declded by any Couil subordlnate to such Hlgh Court and ln whlch no appeal lles lhereto, and lf such subordinate Court appears - (a) ro ha`/e exerclsed a jurlsdlcllon not vested ln lt by low, or (b) lo hove felled lo exerclse a |urlsdlctlon so vested, or (cJ to have acted ln the exercise of Its |urisdlcllon Illegally or wllh material lrregularify, the Hlgh Court may make such order ln the case as lt thinks fll : •..i..........-.-, [Provlded that the High Couh shall not, under this secllon, vary or reverse any order made, or any order decldlng an Issue, In the course Of a sull or other proceedlng, except where - (a) the order, lfll had been made ln favourof the pally applylng for revlslon, would have flnally dlsposed Of the suit or other proceedlng, or (b) the order, if allowed lo stand, would occaslon a lallure Of ]ustlce or cause Irreparable Injury to the party agalnsl whom 11 was made.I" <.,:i........., The next amendment effected by Civil Procedure Code (Amendment) Act 1999 which came into force w.e.f. July 1, 2002, inter alia, amended the above proviso duly deleting the clause (b) while retaining clause (a). Thus, after this amendment, Sec.115 stands as follows: - "115. Bewllon I(1) The I.Ilgh Court may cdi for the record Of any case whlch has been declded by any Court subordlnale to such lllgh Court and ln whlch no appeal lies thereto, and lf such subordlnate Couit appears - (a) to have exerclsed a jurlsdlcHon not vested ln » by low, or (b) to ha`re falled to exerclse a jurlsdlctlon so vesled, or (c) to have acted ln the exerclse Of Its jurlsdlcHon fllegal[y or With material inegultry the Hlgh Court may make such order in the case as lt lhlnks fll: [Pro`/lded that the lllgh Couit shall not, under thls secHon, vary or reverse any order made, or any order decldlng an Issue, ln the course Of a sLill or olheT proceedlng, exceDl \^/here the order. ff it had been made ln favour Of the Dart`/ clDDlvlna for revlslon. would have flnalh/ dlsDosed Of the sull or other E~eediras.I (2) The Hlgh Court shall not, under lhls section, vary or reverse arry decree or order agdinsl \^/hlch an appeal lles either to the Hlgh Couit or to any Court subordlnate lherelo. (3) A revlslon shall riot operate as a stay of sull or other proceedlng before the Court except where •,., •, `1:-\,i..~..,, such suit or other proceeding ls stayed by the High Cour'] Exp/anal/.on - ln this section, the expression "any case which has been declded" Includes any order more, or any order deciding an Issue, ln The course ol a sull or other proceeding." The above legislative history of Sec.115 would go to show that the Amendment Act of 1976 added a proviso to sub-Section (1 ) and after the addition of this proviso, only such order could be reversed or varied in the revisional jurisdiction which is not appellable and which would attract either proviso (a) or (b) and any of the clauses of Section 115(1) CPC. Thus, even if the order fell under any of the clauses of Sec.115(1), the High Court would have no jurisdiction to vary or reverse any interlocutory order unless the order was such that had it been made in favour of the party applying for revision, it would have disposed of the suit or proceeding, or if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Since proviso (b) was deleted by the 1999 Amendment, the High Court can now interfere in revision u/S 115 C.P.C. only if the impugned order falls under any of the clauses of Sec.115(1) and also if it is satisfied that had the impugned order been made in favour of the <r applicant, it would have finally disposed of the suit or other proceedings. 8. While consi.dering the effect of the above various amendments that came up for consideration in a batch of appeals, .in Shiv Shakti Co-op Housing Society Nagpur vs.M|S Swardi Developers& Others AIR 2003 SC 2434 and Others +he Apex Court observed in paras 9 and 10 as follows: - "9. It is to be noted prior to the omendmenls fo the Code by Old Amendment Act, the power Of revision \^ras wider. By the amendment, cendin posltlve restictions were put on the High Court's power to deal with revisions under S.115. Prior to the said amendment. it was nor stricliv necessorv that the imouaned order would ha\re the result Of finally decidina the Its or the oroceedinas in the lower couhs. In fact. the Do\^rer could be exercised ln any case where iurfsdictional error was committed bv the oriainal court or where subsfanlial iniustice had resuthed. Bv the Old Amendmenl Act. 1'he condition Of finaliv decidina Of lis and the oroceedinas in the subordinate courls was introduced. The proviso which was introduced conrdins qualifications which ore pre-requisites before exercise Of power under S.115. They \^rere clciuses (a) and (b) Of the proviso. Loaiealiv. the Hidh Court hcis suo motu Bower to revise an order `^/here tolol failure Of iustlce `^/ouid have occasioned or where irreparable loss would have caused to the Darties against whom it vvcls mcide. These Do`^/ers were rerdined bv clousefb`. Though, after 1976, the exercise Of power was somewhdr circumscribed, it was not tordlly cundiled. Jn other words. the Hiah Couit could even after the 1976 amendment interfere in cases where..there was failure Of iustice or ® -,., -JF imeDarable loss caused. the nature Of the Droceedinas was substantialiv chanaed and the suo molu Bower Of the Hidh Court was retained. It `^ras in the nclture of power Of superintendence Of the High Court over the subordinate courts. Changes were related to indicating llmifations in exercise Of power. 10. Even offer the amendments in 1976, in 1999 and prior to the amendmenl in 1976, the revision power was exerclsable in a case \^rhere the order or the decree, as the case may be, wcis not oppealoble."( emphasis added ). As observed by the Apex Court in para 32 of the above judgment, the stress now is on the question whether the order in favour of the party applyi.ng for revision would have given finality to suit or other proceedings. As further laid down by the Court in the same paragraph, the test to be applied is, if the answer to the question as to whether the order if it were made in favour of the revision petition would have finally disposed of the suit or other proceedings is `yes' then the revision would be maintainable, and if the answer is `no' then the revision would not be maintainable. 9. Having thus noticed the relevant provision of law as it now stands, we may now proceed to see if the impugned order falls under any of the clauses of Sec.115 (1 ) and also whether if it satisfies the condition of finality specified under the amended proviso. 10 '0. Order XXVI Rule 10 of CPC under which the impugned order has been passed provides as follows :- "10. Procedure of Commjssjor]er - (1) The Commissioner, after such local inspection as he deems necessary and offer reducing to wr.hing the evi.dence token by him, shall return such evidence, together with his report in wTiling signed by him, to the Court. (Z) RIepoH and depositions to be evidence ln sujf. - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evi.dence in the suit and shclll form part Of the record; but the Court or, w.hh the permission of the Court, any Of The partles to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned fn his report, or os to his report, or as to the manner in which he hcls made the invech.gation. (3) Commissioner may be examined in persori. - Where the court is for any reason dissatisfied with the proceedings of the Commissioner, il may direct such further inquiry to be made as it shall think fit." 77. ±.-....,., A bare reading of the above provision would make it clear that the report submitted by the Commissioner along with the evidence taken by him shall be evidence in the suit and shall form part of the record. Interpreting this provision, several decisions have held that the object of the local inspection/investigation is merely to assist the Court by obtaining evidence, which from its peculiar nature can best 11 be had from the spot itself. Such report clarifies or explains any point, which is left doubtful on the evidence on record. The sole purpose of the inspection/investigation is thus to enable the Court to properly and correctly understand and assess the evidence on record. It is, therefore, clear that the report of Commissioner is nothing but evidence like any other evidence on record. Thus, if the report submitted by the Commissioner under Order XXVI Rule 10 CPC is to be read as evidence in the suit and is to form part of the record, it is evident that the evidentiary value of such report has to be judged by the Court at the time of evaluating the entire evidence on record. •...:i.......---- It is pertinent to note that Rule 10 already quoted above which deals with the manner in which a report of the Commissioner is to be treated, only permits the orden.ng of `further enqulry' where the report received is unsatisfactory. The rule does not authorize the Court to set aside a Commissioner's report even when it is deficient. Rule 10 sub- clause (3) only provides that if the Court is dissatisfied with the proceedings of the Commissioner, it may direct turf her enquiry and call for supplementary report from the same Commissioner. The rule does not say that supplementary report cannot be called for without setting aside the first 12 report in such eventuality. The words `furlher enquiry' occurring in sub-rule (3) of the section are of significance in this regard. Interpreting the word `further' a Single Bench of Kerala High Court in Dr. P. Subromoni.om ys. K.S.E. Board a OlheJs (AIR J988 Hera/a 169) has observed that the word `furlher' means `additional' or `going beyond what exists' and then by the words 'furfher enquiry' employed in the section, what is evidently intended by the legislature is to correct and bring on record something in addition to what has already been brought in earlier. Such being the position, it was observed that `the intention could not have been to ir wipe the slole clean and start afresh'. J2. It is evident from the above that the approach adopted by the learned trial Court for setting aside the Commissioner's report is not in conformity with the provisions contained in the Code with regard to the value to be attached to a report submitted by the Commissioner. However,a perusal of the impugned order goes to show that the learned trial Court while passing the impugned order relied on two old decisions, one reported in A/R f38) 1951 Assom ]8 and the other reported in AIR I?31 Modros 73. Relying on these decisions, the learned Court came to the conclusion in paragraph 36 of the impugned order that it is ., . `-f+ <dr, 13 settled law that when the Court is of the opinion on considering the objection of the parties, if any, that the Commissioner has so misconceived his duties as to render the report valueless, it may wipe out and supercede the first report by a specific order to that effect and may issue a fresh commission, if required. It would therefore be necessary to see if the two decisions duly support the view taken by the learned trial Court in the matter. 73. A perusal of the decision reported in A/A (38) 7957 Assam 18 goes to show that two attempts made by the Commissioner appointed under Order XXVI Rule 9 CPC to ascertain exact area of alleged encroachment having proved abortive, the Plaintiff applied for issue of fresh commission. This petition was however rejected by the ld. Trial Court. On appeal, the High Court of Assam held that the learned trial Court did not exercise its discretion judicially or in accordance with sound legal principle in declining to issue the fresh commission. It would, therefore, appear that the decision is not directly on the point as to whether the report of the first commission should be set aside while issuing the second commission. In the other Madras decision, it was, of course, observed that the report of the first Commissioner should be `wlped out altogether' and the 14 `..y\! Court should look into the second report only as if the first report had never been made. However, a Division Bench of Patna High Court in Shib Charon Schu a Others vs. Sordo Prasod a Another (Aln ]937 Par 670J refused to recogn.ize the above Madras High Court view as an authority for the proposition that the first Commissioner's report should or should not be wiped out and treated as nonrest before a second Commission was issued. In that case, the contention raised by the defendants was that, when a Judge issues a commission, if he is dissatisfied with the report of the Commissioner and deems fit to direct a second commission to issue, he should wipe the first Commissioner's report off the record entirely, treating it as not being evidence. In regard to such submission, the Bench observed as follows:- "There is nothing in 026, R.10, Civil P.C. to justify such a contention. It is in the bower Of the trial Court to send out a second or even a third commission. and when all the materials ore before the Court lt may dr the time Of deliverfna ]udament atlach very little or no weiaht to the first Commissioner's reDorf, but this is very far from savina thdr this amounts to reauirina the first reDol+ to be wiped out Of the record and not considered as evidence. That the argumenl is entlrely unsound is seen on considering what, if it were true, `^rould be the position in the case`Of an Appellate Court. The first Court's decision on the matter Of fact is not final and lf the contention were lo be accepted, ff would prevent on Appellote Court from raking Info considering the first Commissioner's repolt : this consideration alone is sufficient to dernonstrc[te the fallacy Of the orgumenl ........... " / emphasis added /. 15 (ir` ]4. Refem.ng to and agreeing with the above Division Bench judgment of Patna High Court, the High Court of Pun}ab & Haryana .in Chofu Mauju vs. Gurbhdian Slngh (AIR 1972 P&B 265) in paragraphs 2 and 3 observed as follows :- "lf, rightly or wongly, more than one commission are Issued for legal investigot!on ln respect Of the some mcltter, the Court has no jurisdiction to exclude from the evidence in the case any one Of the reports submftled by the Commissioners unless oH the porlies lo the soft \^/ant the porliculor evidence to be excluded. The report Of each Commissioner under Order 26, Rules 9 and 10 is nothing more than evidence on which either Of the porlies may or may not rely or which may or may not find favour with the Court wholly or porliolly." I5. Taking note of the observation made in both the above decisions, the Kerala High Court in ltydru vs. GovindankuHy Nair (AIR 1982 Ker. 49) observed as follows..- "Rule 10(2) prescribes thdr the report Of the Commissioner and the evidence rdken by him shall be evidence in the suit and shall form part Of the record. When ff is so Prescribed. can the Court efface it from record bv whdr is often called setrlna aside the report. In the absence Of sDeclflc Power conferred therefor by the statute itself? Sub-rule (31 does not specifically Provide for wit)ina out evidence which is already Dart Of the record: it only contemplates a further enauirv and therefore a further report. `^rhieh will also become evidence and Dart Of the record by virtue Of sub-rule /2). ............... " ( emphasis added ). J6. Quoting with approval the observation made above, a Single Bench of the same High Court in Dr. P. # Subramonic\m vs. K.S.i. Board & Others (AIR 1988 Ker. 769)sLipro made the following further observation: - "Now, if the mandate Of the statute is that the report of the Commissioner shall be treated as evidence in the suit, how can any courr set it aside or wipe it out unless it is authorized lo do thdr also. bv the statute? As already noticed. Rules 10 and 12 do not authorize the court lo set aside a commission repoit which 11 ls reaulred to heal as evidence : the rules only Dermil the orderina Of "further enauirv" where the report olreadv received is unsatisfaclow. A po\^rer to order further enquiry into a matter is entirely different from a power to set aside or wipe out thdr which has already become part Of the evidenee in the suit as a resum Of the initial enqutry and the mandate of the statute." /emphasis addecl/. 17. To the same effect are the following observations made by a Division Bench of On.ssa High Court in Smt. I.altoomani Mohanty vs. First Addl. District Judge, Cutlack a others (AIR 1996 0ri. 141) ..- "lt is now well settled thor the report Of a survey knowing Commissioner is nothing more than evidence in a case. It is one of I.he items of evidence amongst other evidence adduced or to be adduced by the ooriies in the suit. The eviclenliary value of the report would be iudged by the court `^rhife evaluatina the entire evidence on record ..... " ( emphas.is added ). 18. Thus, the clear view consl.stently expressed by the different High Courts in the various decisi.ons cited above, hardly leaves any room for controversy in the matter. It must therefore be taken to be a fairty well-settled position in law that if a report submitted by a Commissioner appointed i .e - <=1 -- 17 under Order XXVI Rule 10 is found to be deficient in respect of any item, the Court is empowered to call for supplementary report in addition to what has