Find a Lawyer

Civil Revision Petition No. 172 of 1957 decided on 19th March 1958, under section 115 Civil P. C., for revision of the order of Muhammad Sharif Civil Judge, 2nd Class, Rawalpindi dated the 14th May 1957.

S. 115‑Interlocutory order‑Deciding a substantial question between parties‑Revision competent.

A revision can, in certain circumstances, be filed against interlocutory orders. The criterion for interference being whether the order impugned has decided any substantial question in controversy between the parties affecting their rights as, for instance where the Court and the [local commissioner had shown a fundamental misunderstanding of their respective functions under O. XXVI, rules 11 and 12 with reference to a decree for rendition of accounts.

Bibi Gurdevi v. Chaudhry Muhammad Bakhsh A I R 1943 Lah. 65 ref.

O. XXVI r. 12 (1) (2) ‑‑Respective functions of Court and commissioner for taking accounts‑Liability of party to be determined by Court and quantum by Commissioner.

It is well settled that the Court cannot delegate its judicial powers to a commissioner in the matter of taking evidence and determining issues.

Where a commissioner is appointed for taking accounts, the question of liability should be determined by the Court and that of quantum by the commissioner.

Where a commissioner's report went far beyond his proper functions, for instance, where he decided that an important document was genuine and not false as alleged by the plaintiff and considered the question of the probative value of the evidence led before him, and the Court proceeded to order the appointment of a new local commissioner without giving him any instructions or exact terms of reference.

Held, that such an order of the Court could not be sustained.

When a question of fact or law has been decided by the Court itself, that question cannot be re‑opened by a local commissioner.

Assarmal v. Hundomal A I R 1925 Sind 265; Tincowri Debi v. Suttya Deyal Banerji and another 6 C L J 105 and Dargahan Bibi v. Jyoti Prasad Singh Deo A I R 1934 Pat. 35 ref.

Bashir Ahmad for Petitioner.

Karam Elahi Chauhan for Respondent.

Date of hearing: 13th March 1958.

The facts leading up to this revision petition are that on the 16th of December 1954, a preliminary decree for rendition of accounts was passed by Mr. Ehsan‑ul‑Haq, Civil Judge 2nd Class, Rawalpindi, in favour of Sheikh Hafiz Ullah as proprietor of the Hafiz Ullah Cloth Store, Rawalpindi, against firm M. Rahmat Ullah & Sons, Mr. M. S. Mahboob, Advocate, Rawalpindi, was appointed commissioner, with the direction that after informing the parties. he should examine the relevant accounts and report what amount was due and from which party. The relevant portion of the Urdu order runs in due course Mr. Mahboob submitted a report dated the 19th of June 1956, in which he expressed the opinion that (a) the investment on retiring hundis was made by the defendants, (b) the total sale proceeds of the goods in dispute are Rs. 43,823‑13‑0, and (c) the sum of Rs. 889‑4‑6 was due from the defendant to the plaintiff.

2. Objections were lodged by the plaintiff, and on the 14th of May 1957, Mr. Ehsan‑ul‑Haq's successor, Mr. Muhammad Sharif, also exercising the powers of a Civil Judge of Second Class, cancelled the report of the local commissioner, further directing that "a subsequent local commissioner shall be appoint ed with the concurrence of both the parties on the date of the pronouncement of this order". Against the above order the defendant has come up in revision to this Court.

3. Mr. Karam Elahi Chauhan challenged the competence of the revision petition on the ground that the preliminary condition of there being a case decided by the subordinate Court had not been fulfilled, but this objection has no substance. So far as this Court is concerned, it is settled law that a revision can, in certain circumstances, be filed against interlocutory orders. The leading case on the point is Bibi Gurdevi v. Chaudhry Muhammad Bakhsh (A I R 1943 Lah. 65), the criterion for interference laid down therein being whether the order impugned has decided any substantial question in controversy between the parties affecting their rights. In the present case both the learned Civil Judge and the ‑local commissioner have shown a fundamental Misunderstand ing of their respective functions.

4. Before discussing the manner in which the case has been dealt with by the trial Court and the commissioner, the correct legal position may be explained. Order XXVI rule 11, Civil P. C., provides that in any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment. Sub‑rule (1) of rule 12 of the same Order enjoins that the Court shall furnish the commissioner with such part of the proceedings and such instructions as appear necessary and that the instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which be may hold on the inquiry or also to report his own opinion on the point referred for his examination. Sub‑rule (2) of the above rule lays down that the proceedings and report (if any) of the commissioner shall be evidence in the suit, but that where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. It is well settled that the Court cannot delegate its judicial powers to a commissioner in the matter of taking evidence and determin ing issues, and in case Assarmal v. Hundomal (A I R 1925 Sind 265) it was laid down that as a general rule it is better for the Court itself to settle the exact terms of the order to the commissioner and that it is the business of the Court and not of the commissioner to ascertain which books are true or false, which party is or is not keeping back the books what documents are relevant, and the like. It was further remarked in the same authority that the commissioner must not be made a sort of inferior judicial officer. Again, in Tincowri Debi v. Suttya Doyal Banerji and another (6 C L J 105) it was held that the object of an order appointing a local commissioner is to refer to the commissioner the examina tion of the accounts for the purpose of enabling the Court to see what the accounts were and that the duty of the commissioner is to make out an account showing to the Court exactly how the account in the books stands and nothing else. The learned Judges also held in the same case that the business of the commissioner is practically to place himself in the position of an assistant to the Court and that he cannot deal with the case as if he is the judge or an arbitrator appointed by the parties.

5. Another important case on the same point is Dargahan Bibi v. Jyoti Prasad Singh Deo (A I R 1934 Pat. 35), which lays down that where a commissioner is appointed for taking accounts, the questions of liability should be determined by the Court and that of quantum by the commissioner, though the learned Judges at the same time remarked that the two matters are occasionally so co -mingled that it is almost impossible to distinguish them.

6. Keeping the above principles in view, the report of the local commissioner and the order of the learned Civil Judge thereon may now be examined. A perusal of the report show that it goes far beyond the proper functions of a commissioner for the examination of accounts. For example, the commissioner decided that a certain important document. (Exh. D. 1/A) was genuine, and not false as alleged by the plaintiff, and considered the question of the probative value of the evidence led before him. In other words, the commissioner did not confine himself to determining the quantum, but also examined the question of the factum, of liability. Indeed, were it not known that the document in question is the report of a local commissioner, it could very easily be mistaken for the judgment of a Court.

7. The error committed by the learned Civil Judge, on the other hand, is that in spite of having, decided several matters himself, he went on to order the appointment of another local commissioner, forgetting that when a question of fact or law, has been decided by the Court itself, that question cannot be re‑opened by a local commissioner. To mention only three instances of matters settled by the learned Civil Judge, he dis agreed with the opinion of the local commissioner regarding the genuineness of the document (Exh. D. 1/A); he held that although the defendant may have contributed certain negligible sums towards the retiring of the hundis in dispute, he had not made the whole investment; and he expressed the opinion that the account produced before the local commissioner had not been properly proved, referring in that connection to section 34 of the Evidence Act.

8. It is clear that the order of the learned Civil Judge appointing anew local commissioner without giving him instructions or exact terms of reference cannot be sustained, accordingly set aside the order in question, and return the record for further proceedings according to law, keeping in mind the principles enunciated above. Any matters decided by the learned Civil Judge by the order under reference should not be re‑opened by a subsequent local commissioner and, before, appointing such a commissioner, the learned Civil Judge should carefully consider what are the matters with respect to which further inquiry should be ordered under Order XXVI, rule 12 (2).

9. In the circumstances of the case, I pass no order as to costs of this revision petition.

A.H. Case returned for further proceedings.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.