C.R. No. 2260 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 2260 of 2010 (O&M) Date of Decision : 20.07.2010 Harinderjit Singh & others .......... Petitioners Versus Suresh Kumar & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Satbir Rathore, Advocate for the petitioners. Mr. K.S. Dadwal, Advocate for respondents No.1 to 5. **** VINOD K. SHARMA, J. (ORAL) The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the impugned order dated 6.3.2010, passed by the learned Civil Judge (Jr. Div.), Dasuya, while dismissing the application moved by the petitioners, the learned Civil Judge (Jr. Div.), Dasuya has held, that the petitioners have lost their right to contest objections filed to the report of Local Commissioner. The brief facts of the case read as under :- That the suit filed by the plaintiff / respondents for partition of the land was decreed by the learned trial Court, and Preliminary decree was passed determining the share of respective parties in the joint property. When the preliminary decree attained finality, the learned C.R. No. 2260 of 2010 -2- Civil Judge (Jr. Div.), Dasuya appointed a Local Commissioner to work out the mode of partition and separate the share of the respective parties. The Local Commissioner submitted its report to the Court. The petitioners filed objections, attached as Annexure P-3 to this petition. The learned Court without considering the objections, on merit passed a final decree accepting the mode of partition suggested by the Local Commissioner. The petitioners went in appeal against the final decree. The appeal was accepted by the learned Appellate Court, and the case was remanded back to the learned trial Court. The operative part of the order passed by the learned trial Court reads as under :- “That, in such circumstances I set aside the judgment and decree of the learned trial Court and remand the case back to the learned trial Court with the directions to pass fresh judgment and decree after considering the report of the Local Commissioner as well as objections raised by JDs. Both the parties are directed to appear before the learned trial Court on 16.7.2009 before the learned trial Court. File be consigned.” In pursuance to the remand, the parties appeared before the learned trial Court, wherein the petitioners moved an application under Section 151 of the Code of Civil Procedure for summoning the Local Commissioner for cross-examination. The learned trial Court while dismissing the application for calling the Local Commissioner for cross-examination, passed an order, the operative part of which reads as under :- C.R. No. 2260 of 2010 -3- “4. Heard. A perusal of the file reveals that Sh. Ajit Singh Bhullar was appointed Local Commissioner vide order dated 16.4.2001 and thereafter, Sh. Ajit Singh Bhullar has submitted his report suggesting the Mode of partition of suit property. The contention of applicants/LRs of JD No. 7, 14 and 16 is that Local Commissioner in his report has suggested to give more valuable portion as well as more portion than the share to the decree holder, therefore, cross examination of Local Commissioner is necessary for the purpose of passing final decree. It is pertinent to mention here that Local Commissioner in his report has specifically stated that he had served notice through UPC upon concerned parties on 18.7.01 and in pursuance of which Jaswant Devi (JD-4-A) and Janak Raj (JD-7) (now deceased) alongwith their counsel were present at the time of spot inspection by the Local Commissioner at the spot. The Local Commissioner has produced statement of above said JDs on record. Meaning thereby the suggested mode of partition was prepared by the Local Commissioner in the presence of above mentioned Jds and an opportunity of being heard was given to them but the above said JDs did not raise any objection before the Local Commissioner. Thus, the JDs / objectors, i.e. L.Rs of JD No. 7, 14 and 16 cannot say that suggested mode of partition was prepared in their absence or an opportunity of being heard was not given to them. It is pertinent to C.R. No. 2260 of 2010 -4- mention here that JDs could raise objections at the time of visit of Local Commissioner, therefore, JDs / objectors have waited their right to raise objection. The facts of the case law cited supra by the Objectors / JDs are not applicable to the present case. Accordingly, application under consideration is dismissed.” The learned counsel for the petitioners contended, that the impugned order cannot be sustained, as the Local Commissioner was required to prove his report, therefore, was to appear as a witness in the witness box, therefore, the liberty should have been given to the petitioners for cross-examination. This contention of the learned counsel for the petitioners can not be accepted. The Local Commissioner was appointed by the Court, and not on request of the party, therefore the report of the Local Commissioner is per se admissible. The parties have a right under Order 26 Rule 14 of the Code of Civil Procedure to file objections against the report of the Local Commissioner, which are required to be adjudicated by the Court. Order 26 Rule 14 of the Code of Civil Procedure reads as under :- “14. Procedure of Commissioner.-(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the C.R. No. 2260 of 2010 -5- said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. (3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.” The contention of the learned counsel for the petitioners, therefore, was that the impugned part of the order, vide which the petitioners have been denied the right to contest the report for not filing objections before the Local Commissioner, can not be sustained, because as per Order 26 Rule 14 of the Code of Civil Procedure, the objections are to be decided by the Court. There is force in this contention of the learned counsel for the petitioners. C.R. No. 2260 of 2010 -6- The Court before accepting the report of the Local Commissioner was required to deal with the objections Annexure P- 3, filed by the petitioners, and decide on merit. The objections filed by the petitioners could not be dismissed as not maintainable for want of objections before the Local Commissioner. There is no provision to file the objections with the Local Commissioner, as these could be filed in Court, which petitioners did, and copy of objections is on file . Furthermore the learned Appellate Court also remanded the case with a direction to consider the objections and thereafter pass a final decree. For the reasons stated above, this revision is partly allowed, while upholding the order of the learned trial Court, that the Local Commissioner cannot be summoned as witness for cross- examination, the impugned part of order in denying the right to file objections, is set aside and the case is remanded back to the learned trial Court to decide the objections Annexure P-3, in accordance with law and thereafter pass a final decree. Revision partly allowed. 20.07.2010 (VINOD K. SHARMA) 'sp' JUDGE