Moideen Haji (dead) and others v. K.V. Mukundan and Muhammed Musthafa

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** ## **OP(C) NO. 648 OF 2018** **AGAINST THE ORDER DATED 23/1/2018 AND 12/2/2018 IN I.A.NO.1432/17 AND** **I.A.NO.163/2018 IN O.S NO. 149/2010 OF MUNSIFF MAGISTRATE** ## **COURT,PERINTHALMANNA** ## **PETITIONERS:** |1|MOIDEEN HAJI| |---|---| ||82 YEARS, S/O.RAYIN, PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT (DIED)| |ADDL.P2|KUNJEEVI, W/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 325| |ADDL.P3|ABDUL SALAM, AGED 62 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679325| |ADDL.P4|MOHAMMED SHAFI, AGED 60 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT| |ADDL.P5|ABDUL RASHEED, AGED 58 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT- 679325| |ADDL.P6|ABDUL MAJEED, AGED 51 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679325| |ADDL.P7|IBRAHIM,AGED 48 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679325| |ADDL.P8|ABDUL MUTHALIB, AGED 45 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT – 679 325| |ADDL.P9|SHAJIMMON, AGED 42 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT – 679 325| |ADDL.P10|UMMER, AGED 56 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT – 679 325| |ADDL.P11|ABDUL NASER, AGED 47 YEARS, S/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679325| |ADDL.P12|FATHIMA, AGED 55 YEARS, D/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT – 679 325| |ADDL.P13|JAMEELA, AGED 40 YEARS, D/O (LATE) MOIDEEN HAJI| ||RESIDING AT PEECHAMANNIL HOUSE, NENMINI AMSOM DESOM,| ||PERINTHALMANNA TALUK, MALAPPURAM DISTRICT – 679 325| (ADDL.P2 TO P13 IMPLEADED AS THE LRS OF P1 VIDE ORDER DATED 27/06/2023 IN I.A.NO.2/2022.) BY ADVS. ## **`OP(C) NO. 648 OF 2018`** ``` 2 ``` SRI.R.SREEHARI ANOOP.V. NAIR SRI.V.MANOJKUMAR SRI.SACHIN VYAS SRI.M.V.SURESH KANNUR SRI.V.K.SREEJITH ## **RESPONDENTS:** 1 K.V.MUKUNDAN 55 YEARS, S/O.VALLABHAN UNNI, VRINDAVAN HOUSE, NENMINI AMSOM, DESOM AND POST, PERINTHALMANNA TALUK, PIN-679508. 2 MUHAMMED MUSTHAFA 50 YEARS, S/O.MOIDEEN HAJI, PEECHAMANNIL HOUSE, NENMINI AMSOM, DESOM, PERINTHALMANNA TALUK, PIN-679508. BY ADV SRI.R.RAJESH KORMATH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(C) NO. 648 OF 2018 ``` ``` 3 ``` ## **JUDGMENT** ``` It is against the orders rejecting the applications to set aside the Commissioner's report and to remit back the same, the first defendant came up. ``` 2. The question came up primarily is regarding the permissibility of the court to set aside or remit back a Commissioner's report submitted under Rule 9 or 10 of Order XXVI C.P.C.. The decision rendered by a Division Bench of this Court on an earlier point of time in **Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041)** and subsequent decisions of a Single Bench of this Court in **Yudathadevus v. Joseph (2021(5) KHC 668)** and a coequal Bench of this Court in **Laly Joseph v. Francis (2023 (2) KLT 516)** were brought to the notice of this Court. It appears that the legal position settled by the Constitution Bench of the Apex Court in **Central Board of** **Dawoodi Bohra Community and another v. State of** **Maharashtra and another (AIR 2005 SC 752)** and a subsequent three Judge Bench of the Apex Court in **New** **India Assurance Co. Ltd. v. Hilli Multipurpose Cold** ``` OP(C) NO. 648 OF 2018 ``` ``` 4 ``` **Storage Pvt. Ltd (AIR 2016 SC 86)** was not followed in the abovesaid two subsequent decisions and even the matter was not referred to a larger Bench. 3. The scope and ambit of Order XXVI C.P.C. was discussed in detail by the Division Bench of this Court in **Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041)** and laid down the legal position in reference to the legal position covered by **Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144), Chinmaya Saha v. Renuka Halder (AIR 2016 Cal.33 = 2016 KHC 2319) Dr.Subramonian v. K.S.E.B. (1987 (1) KLT 355), Thottama v. C.S. Subramaniyyan (AIR 1922 Mad. 219), Shib Charan Sahu & others v. Sarda Prasad & another (AIR 1937 Pat. 670), Union of India and another v. Major Bahadur Singh ((2006) 1 SCC 368), Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]** . The legal position laid down by an earlier Division Bench in **Swami Premananda Bharathi** 's case (supra) was explained and distinguished by the Division Bench in **Francis Assissi** 's case (supra) by relying on the legal position regarding interpretation ``` OP(C) NO. 648 OF 2018 ``` ``` 5 ``` of judgment laid down by the Apex Court in **Union of India and another v. Major Bahadur Singh [(2006) 1 SCC 368]** , **Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC))** and in **Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434]** . Paragraphs 32 to 40 of the said judgment ( **Francis Assissi** 's case) are extracted below for reference: “32. In Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) a Division Bench of this Court held as follows: “That the first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy. The proceedings in the court below could be expedited without waste of time and money. We are of the view, that only if the court has reason to be dissatisfied with the proceedings and report of the first commissioner for reasons stated, it can appoint a second commissioner for further inquiry. This is a condition precedent. The provision contained in Order XXVI Rule 12 C.P.C is “vital”. Strict adherence alone will facilitate speedier, effective and cheaper administration of justice. Therefore, the appointment of the second commissioner and the reports filed by him without setting aside the first commissioner’s report is wholly illegal and without jurisdiction”. 33. The said decision was rendered after referring the above said decisions but did not go into the question of different treatment given to R.1 to 14 of O.XXVI in accordance with the purpose to be achieved, but had taken note of minor difference in the phraseology in O.XXVI R.10(3) C.P.C. and O.XXVI R.12 C.P.C. As discussed in earlier paragraph Rule 12 deals with examination of accounts or adjustment of accounts through commission. But Rules 10(2) ``` OP(C) NO. 648 OF 2018 ``` ``` 6 ``` and (3) stand for commission for local investigation. The power of Court to examine the Commissioner personally in open court is engrafted in R.10(2) but there is no such power included any where in R.11 or 12. But for saying that the report of the Commissioner shall be evidence in the suit. The expression “shall form part of the record” as engrafted in R.10(2) is conspicuously absent in R.12(2). In fact R.10 and R.12 designed and intended for meeting different situations are having different applications and impact, though the principles laid down therein are one and the same. 34. Neither in R.10 nor in R.12 the power to set aside the commission report or to wipe out of record, is included. The report submitted under R.12, though shall be in evidence in the suit, it will not form part of the record as in the case of R.10 wherein it is specifically stated that the report of the Commissioner and the evidence taken by him shall form part of the record. As discussed in earlier paragraphs both R.10 and 12 emphasis the need to issue and to direct a further enquiry when the Court has reason to dissatisfy with the proceedings of the Commissioner. Necessarily a further enquiry stands for issuance of a second Commission. Nowhere it is stated in R.10 or 12 the requirement of setting aside earlier one or to discard the earlier one. Setting aside of a commission report or varying a commission report, stands provided only in R.14(2) which stands for issuance of commission to make partition. The Division Bench did not consider the purpose for which R.10 and 12 was enacted and also the conspicuous absence of expression “shall form part of record” in R.12(2) and also absence of provision either in R.10 or in R.12 for setting aside or varying the commission report. What is applied by the Division Bench in that decision is the public policy to have a speedier, effective and cheaper administration of justice and not on the basis of the scheme of O.XXVI C.P.C. and the Rules thereunder. In fact what is held in that decision is that the Court can appoint a second commission for further enquiry only if the Court has reason to dissatisfy with the proceedings and report of the first ``` OP(C) NO. 648 OF 2018 ``` ``` 7 ``` commissioner for the reasons stated. 35. It is well settled that a judgment has to be read in whole to appreciate what actually is rendered, the ratio/rationale and the principle applied, in order to understand what is actually given by the judgment/adjudication thereof. There may be so many observations/discussions leading to an inference or in arriving at a conclusion in a judgment. It is not advisable to pick and choose one or two words or sentences and to interpret the same apart from what is actually dealt under the judgment. 36. While interpreting a judgment on the rationale/ratio applied therein, the observations, reasons/discussions made therein in arriving at a conclusion shall be understood not in isolation apart from the conclusion arrived at. The observations must be read in the context in which they appear to have been stated and observation made in the judgment should not be read in isolation apart from the conclusion arrived therein. Further the observation shall not be substituted in place of conclusion arrived at, there cannot be any uniform application of rules governing interpretation of statutes and interpretation of judgment/orders. They are governed by different fields of interpretation. 37. In Union of India and another v. Major Bahadur Singh ((2006) 1 SCC 368) the Apex Court settled the following in the matter of interpretation of judgments. “Observations of the courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussions is meant to explain and not to define.” 38. Then again in Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC) = (2007) 4 SCC 1), it was held by the Apex Court that for construing a judgment, it must be read in its entirety. 39. In Bombay Dyeing & Mfg. Co. Ltd. v. ``` OP(C) NO. 648 OF 2018 ``` ``` 8 ``` |Bombay Environmental Action Group and others| |---| |((2006) 3 SCC 434=AIR 2006 SC 1489), the| |position stands further reiterated as follows:| |“Judgment are required to be read in their| |entirety. A judgment cannot be read as a| |statute.<br> Construction of a judgment should be| |made in the light of the factual matrix| |involved therein.What is more important is to| |see the issues involved therein and the context| |wherein<br>observations<br>were<br>made.<br>Any| |observations made in a judgment should not be| |read in isolation and out of context<br>.”| |40.<br> While applying the above said| |principle in interpreting the judgment in Swami| |Premananda Bharathi’s case the observation made| |by the Division Bench by importing application| |of public policy in order to have a speedy| |disposal, effective time management and cheaper| |administration of justice has to be understood| |in that context. The conclusion arrived at by| |the Division Bench is that“only if the court| |has reason to be dissatisfied with the| |proceedings and report of the first| |commissioner for reasons stated, it can appoint| |a second commission for further inquiry and| |that is a condition precedent. The condition| |precedent is the dissatisfaction of the| |proceedings and report of the first commission.| |So, in fact, the position rendered in that| |decision does not have any inconsistency with| |the earlier view taken in Hydrose v.| |Govindankutty (1981 KLT 360) and Ummer v.| |Muhammed (1983 KLT 258).”| (emphasis supplied) 4. In fact, the decision rendered by the earlier Division Bench of this Court in **Swami Premananda** **Bharathi** 's case (supra) was distinguished and explained in the subsequent Division Bench decision in **Francis** **Assissi** 's case (supra) and there is no conflict in the legal position laid down in these two decisions. 5. A Constitution Bench of the Apex Court in ``` OP(C) NO. 648 OF 2018 ``` ``` 9 ``` # **Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (AIR 2005 SC 752)** had laid down the principle of binding precedent as follows: “12 **.** Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms: ( _1_ ) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. ( _2_ ) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: ( _i_ ) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and ( _ii_ ) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration ``` OP(C) NO. 648 OF 2018 ``` ``` 10 ``` then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Union of India and another v. _Raghubir Singh (dead) by Lrs. & others_ [(1989) 2 SCC 754] and Union of India & Another v. _Hansoli Devi & Others_ [(2002) 7 SCC 273].” (emphasis supplied) 6. Subsequently, another three Bench of the Apex Court in **New India Assurance Co. Ltd. v. Hilli** ## **Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86)** had reiterated the principle of binding precedent. Paragraphs 18 and 19 are extracted below for reference: “18. There is one more reason to follow the law laid down in the case of _J.J. Merchant_ [ _J.J. Merchant_ v. _Shrinath Chaturvedi_ , (2002) 6 SCC 635] . _J.J. Merchant (supra)_ was decided in 2002, whereas _Kailash_ [ _Kailash_ v. _Nanhku_ , (2005) 4 SCC 480] was decided in 2005. As per law laid down by this Court, while deciding the case of _Kailash (supra)_ , this Court ought to have respected the view expressed in _J.J. Merchant (supra)_ as the judgment delivered in the case of _J.J. Merchant(supra)_ was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in _J.J. Merchant (supra)_ should be followed. 19. Our aforestated view has also been buttressed by the view expressed by this Court in _Central Board of Dawoodi Bohra Community_ v. _State of Maharashtra_ (2005) 2 SCC 673 : 2005 SCC (Cri) 546 : 2005 SCC (L&S) 246] , wherein a question had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal strength. ``` OP(C) NO. 648 OF 2018 ``` ## **`11`** 7. It is wholly impermissible for a Bench of lesser quorum to go into the correctness of the legal position laid down by an earlier coequal Bench or a larger Bench except on the question of _per incuriam_ statute or decisis. It is not permissible for a Bench of lesser quorum to doubt the correctness of decision rendered by a larger Bench on an earlier point of time, but will stand bound by the decision rendered by the larger Bench based on the principle of binding precedent and only a coequal Bench can doubt the correctness of the decision earlier rendered by a coequal Bench and the option then available is to refer the matter to a larger Bench. It is brought to the notice of this Court that a Single Bench of this Court in **Yudathadevus v. Joseph (2021 (5) KHC 668)** , had found fault with the decision of the Division Bench, which rendered the decision in **Francis Assissi** 's case (supra) mainly on two grounds; (1) the decision rendered in **Swami Premananda Bharathi** 's case (supra) was not understood in a correct perspective (2) the Division Bench omitted to consider the decision rendered in **State** ## **v. Kodakkat Pocker & Others (1987 (1) KLT 714)** . 8. Subsequently, a Division Bench of this Court in ``` OP(C) NO. 648 OF 2018 ``` ``` 12 ``` **Laly Joseph v. Francis (2023 (2) KLT 516)** found that the legal position laid down in **Francis Assissi** 's case (supra) is an obiter and is not a good law based on the very same reasons pertaining to the earlier pronouncement in **Swami Premananda Bharathi** 's case (supra) and **Kodakkat** **Pocker** 's case (supra). Strange enough, the fact that the legal position rendered in **Swami Premananda Bharathi** 's case was taken into consideration by the Division Bench in **Francis Assissi** 's case (supra) was not even looked into or referred either by the Single Bench or by the Division Bench. It is the settled law that a wrong decision rendered by a coequal Bench on an earlier point of time, if it is pertaining to ratio decidendi will have the binding precedent, unless the matter is referred to a larger Bench and decided on its merits. Paragraphs 5 and 11 of the said judgment [Laly Joseph's case(supra)] are extracted below for reference: “ 5. ......According to us, it will not constitute a binding precedent for the reason that it was not an issue that had arisen in that case for consideration. It can only be treated as an observation and has no precedential value. ........... 11. In the light of the discussions, we are of the view that the observation in Francis Assissi’s case (supra) is an ``` OP(C) NO. 648 OF 2018 ``` ``` 13 ``` obiter and is not good law as it was rendered overlooking the statutory provisions as referable for the Commissioner for local investigation under O.XXVI Rules 9 and 10 of the Code by overlooking the earlier binding precedents of co-ordinate bench. The reference is answered as above.” 9. Regarding the first ground, the Division Bench has taken into consideration the decision in **Swami** **Premananda Bharathi** 's case (supra) and hence it is not a ground available for a Bench of lesser quorum (Single Bench) to rewrite the legal position settled by the Division Bench, otherwise, it amounts to downplaying the principle of binding precedents settled by the Apex Court in the abovesaid two cases :- (1) **Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (AIR 2005 SC 752)** (2) **New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86).** 10. It is not within the jurisdiction of a Single Bench or a Bench of lesser quorum to go into the merits and demerits of earlier decision laid down by a coequal Bench or a larger Bench and cannot doubt the binding precedents and as such, the decision rendered by the ## **`OP(C) NO. 648 OF 2018`** ## **`14`** Single Bench of this Court in **Yudathadevus v. Joseph (2021 (5) KHC 668)** will not get the sanctity of “in compliance with the principle of binding precedents” as laid down by the Apex Court in the abovesaid two decisions. A Bench of lesser quorum cannot even refer the issue to a larger Bench, but can be brought to the notice of the Chief Justice so as to constitute a coequal Bench to go into the question of doubt, if any, raised by the Single Judge pertaining to the decision rendered on an earlier point of time either by a coequal Bench or a larger Bench. The only exception to this principle is resting on the principles of _stare decisis_ and the _per incuriam_ statute or decisis. As discussed earlier, even a wrong decision by a larger Bench or by a coequal Bench will not take away its binding precedent. Hence, it has to be ascertained in relation to the _ratio decidendi_ applied and settled. 11.Regarding the second ground, it is necessary to have a look at the decision rendered in **Kodakkat Pocker** 's case (supra). Prima facie, it appears that both the Single Bench and the Division Bench in the abovesaid two subsequent decisions had applied “pick and choose” of one ``` OP(C) NO. 648 OF 2018 ``` ``` 15 ``` word incorporated towards the last portion of the said judgment i.e. “to set aside” referring to a Commissioner's report submitted under Rule 10 of Order XXVI C.P.C.. In fact, the question whether a Commissioner report can be set aside or not was not taken up or adjudicated in that decision, but specified only the application of sub-rule (3) of Rule 10. The relevant portion of the judgment is extracted below for reference: “8. O.26 R.9 CPC enables the Court to issue commission for local inspection whenever it finds that it is necessary for deciding any matter in dispute. The object of deputing a commissioner for local inspect-on is to gather evidence which from its peculiar nature can best be had from the spot itself. The evidence collected and reported by the commissioner will enable the Court to properly and correctly analyse it commission report will be helpful to clarify or explain any point which is left doubtful in evidence on record. O.26 R.10(3) CPC enables the Court, if for any reason it is dissatisfied with the proceedings of the commissioner, to make further enquiry as it shall think fit. Under the sub-rule it is always open to the Court to analyse the commission report and to call for fresh report if it is found that the report and truth are poles apart. The Court has necessarily to consider the correctness or falsity of the commission report on the basis of materials and data available before it. Merely because one of the parties did not file objection to the commission report it cannot be said that the court is powerless to deal with it in a case coming under Sub-Rule (3). Not only the trial Court, but also the appellate Court can exercise this power. In a case where the Court finds that the commission report is totally unacceptable as it is not in accordance with true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its - power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting ``` OP(C) NO. 648 OF 2018 ``` ``` 16 ``` party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub-rule (3). It is very well within the competence of the appellate Court also to exercise in appropriate cases power under O.26 R.10(3) to set aside the commission report and call for fresh report by deputing another commissioner.” (emphasis supplied) 12. What is considered and laid down in that decision is the application of sub-rule(3) of Rule 10 of Order XXVI C.P.C. and not in relation to sub-rule(2). Under sub-rule(3), the court can exercise its jurisdiction by directing further inquiry as it deems fit. That does not mean that the court can set aside the earlier report of the Commissioner for the purpose of issuing a second one or having the jurisdiction to set aside a Commissioner report set forth under rule 9 or 10 of Order XXVI C.P.C., otherwise, it will offend the mandate under sub-rule(2) of Rule 10 of Order XXVI C.P.C., which was not taken into consideration in **Kodakkat Pocker** 's case (supra). In fact, there is a material omission regarding the application of sub- rule(2) and what is considered is pertaining to the application of sub-rule(3) alone and hence, the incorporation of the word “to set aside” along with other ## **`OP(C) NO. 648 OF 2018`** ## **`17`** mandate, which would come under the purview of subrule(3) must be understood in that context, otherwise, it would fall under the mischief of “pick and choose” and will not get the sanctity of “ratio decidendi”. It is neither permissible nor advisable to unsettle the legal position by applying “pick and choose” in relation to an earlier decision without going into the question whether it would constitute the _ratio decidendi_ , having the sanctity of binding precedent. The courts are not expected to unsettle the legal position earlier settled by a coequal Bench or a larger Bench simply by picking one or two words from a decision of an earlier point of time without going into the question of ratio applied and the binding precedent thereof. Sub-rule(3) to Rule 10 empowers the court to exercise its jurisdiction in appropriate cases to call for a fresh report by deputing another Commissioner. No authority or power is given to the court to set aside the report. Sub-rule(3) is extracted below for reference: “10(3 **)Commissioner may be examined in person** - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further ” inquiry to be made as it shall think fit. (emphasis supplied) ``` OP(C) NO. 648 OF 2018 ``` ## **`18`** 13. The only authority given to the court is to direct such further enquiry to be made as it shall think fit”. No authority or power was given to the court under that sub-rule to set aside a report presumably on the reason that it would go against and offend the mandate under Rule 10(2) of Order XXVI C.P.C., that such report “shall be in evidence in the suit and shall form part of the record”. This would make the legal position clear that there cannot be any authority to the court to set aside a Commissioner's report submitted under Rule 10 of Order XXVI C.P.C.. On the other hand, it shall be in evidence in the suit and shall form part of the record by virtue of the statutory mandate under sub-rule(2) to Rule 10. In fact, the authority to set aside a Commissioner's report in relation to the jurisdiction that can be exercised under sub-rule(3) was not adjudicated in reference to the mandate under sub-rule(3) in **Kodakkat Pocker** 's case (supra) and hence the incorporation of the word “to set aside” in the said judgment must be understood not as the “ratio decidendi” applied and laid down in that decision. It is quite impermissible to pick and choose one word, without going into the entire ``` OP(C) NO. 648 OF 2018 ``` ``` 19 ``` judgment so as to give an entirely different connotation than what is intended or laid down in that judgment. It is also impermissible to interpret a judgment as if it were a statute. Incorporation of words and expression used in a statute, cannot be equated with the wordings and expressions used in a judgment. While interpreting a judgment on the rationale/ratio applied therein, the observations, reasons/discussions made therein in arriving at a conclusion shall be understood not in isolation apart from the conclusion arrived at. The observations must be read in the context in which they appear to have been stated and observation made in the judgment should not be read in isolation apart from the conclusion arrived therein. The said question was elaborately discussed in **Francis Assissi** 's case (supra) based on the three decisions of the Apex Court in **Union of India and another v. Major Bahadur Singh ((2006) 1 SCC 368), Nair Service Society v. State of Kerala (2007 (2) KLT 77 (SC) = (2007) 4 SCC 1)** and in **Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group and others ((2006) 3 SCC 434 = AIR 2006 SC 1489)** . 14. In **Union of India v. Dhanwanti Devi [(1996) 6** ``` OP(C) NO. 648 OF 2018 ``` ## **`20`** **SCC 44]** , the Apex Court reiterated that “a precedent by long recognition matures into rule of _stare decisis_ ”. The court explained that it is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the _ratio decidendi_ . According to the wellsettled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts ; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. 15. The Division Bench in **Laly Joseph** 's case (supra) has skipped the mandate of referring the issue to a ``` OP(C) NO. 648 OF 2018 ``` ## **`21`** larger Bench. Further, the Division Bench omitted to consider the impact of sub-rule (2) to Rule 10 of Order XXVI C.P.C., which is the material omission crept in **Kodakkat Pocker** 's case (supra). It is necessary to refer the rule of “ _stare decisis”_ , which was relaxed into by developing the principle of “ _per incuriam”_ . A decision is rendered per incuriam where the Court has acted in ignorance of an earlier decision or the provision of a statute which is controlling. Although this infirmity can cripple the authority of an otherwise binding precedent, this rule should be invoked with caution. In **Mamleshwar** **Prasad v. Kanhaiya Lal [(1975) 2 SCC 232]** , Krishna Iyer, J. observed a keynote thought on the principle of _per incuriam_ . “Certainty of the law, consistency of rulings and comity of courts, all flowering from the same principle, converge to the conclusion that a decision once rendered must later bind like cases. It is no doubt true that in exceptional instances, where by obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority, running counter to the reasoning and result reached, it may, not have the sway of binding precedents. But it should be a glaring case, an obtrusive omission.” **==> picture [447 x 12] intentionally omitted <==** **==> picture [483 x 12] intentionally omitted <==** ## **`OP(C) NO. 648 OF 2018`** ``` 22 ``` Constitution Bench in **Central Board of Dawoodi Bohra Community'** s case (supra) and the three Judge Bench in **New India Assurance Co.** 's case (supra), the decision rendered in **Yudathadevus v. Joseph (2021 (5) KHC 668)** by a Single Bench of this Court and in **Laly Joseph v. Francis (2023 (1) KLT 516)** by the Division Bench of this Court cannot claim the sanctity of binding precedent. 17. Hence, the impugned orders passed by the trial court refusing to remit back and to set aside the Commissioner's report submitted under Order XXVI Rule 10 C.P.C. deserves no interference. The parties are at liberty to apply for a second commission instead of seeking to set aside the earlier report or to remand back the same. ``` With the abovesaid observations, the Original ``` ``` Petition will stand dismissed. ``` ``` Sd/- ``` **P.SOMARAJAN JUDGE** ``` sv ``` ``` OP(C) NO. 648 OF 2018 ``` ``` 23 ``` ## **APPENDIX OF OP(C) 648/2018** |PETITIONER'S EXHIBITS|| |---|---| |EXHIBIT P1-|PHOTO COPY OF PLAINT IN O.S.NO.149/2010 OF| ||MUNSIFF MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P2-|PHOTO COPY OF THE WRITTEN STATEMENT OF THE| ||IST DEFENDANT FILED IN O.S.149/2010 OF| ||MUNSIFF MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P3-|PHOTO COPY OF THE WRITTEN STATEMENT OF THE| ||2ND DEFENDANT FILED IN O.S.149/2010 OF| ||MUNSIFF MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P4-|PHOTO COPY OF THE REPORT DATED 19/01/2012 AND| ||PLAN OF THE ADVOCATE COMMISSIONER.| |EXHIBIT P5-|PHOTO COPY OF THE REPORT DATED 21/11/2017 OF| ||THE ADVOCATE COMMISSIONER FILED IN| ||I.A.51/2013 IN O.S.149/2010 OF M M C| ||PERINTHALMANNA AND PLAN.| |EXHIBIT P6-|PHOTO COPY OF AFFIDAVIT & APPLICATION| ||I.A.149/2010 OF MUNSIFF MAGISTRATE COURT,| ||PERINTHALMANNA.| |EXHIBIT P7-|PHOTO COPY OF THE OBJECTION FILED IN| ||I.A.1432/2017 IN O.S.NO.149/2010 OF MUNSIFF| ||MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P8-|PHOTO COPY OF THE JUDGMENT REPORTED IN| ||2017(1) KLT 1041 OF THIS HONOURABLE COURT.| |EXHIBIT P9-|PHOTO COPY OF AFFIDAVIT AND APPLICATION| ||I.A.163/2018 IN O.S.NO.149/2010 OF MUNSIFF| ||MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P10-|PHOTO COPY OF THE OBJECTION FILED IN| ||I.A.163/2018 IN O.S.NO.149/2010 OF MUNSIFF| ||MAGISTRATE COURT, PERINTHALMANNA.| |EXHIBIT P11-|PHOTO COPY OF THE ORDER PASSED IN| ||I.A.1432/2017 IN O.S.NO.149/2010 OF THE| ||MUNSIFF MAGISTRATE COURT, PERINTHALMANNA| ||DATED 23/01/2018.| |EXHIBIT P12-|PHOTO COPY OF THE ORDER PASSED IN| ||I.A.163/2018 IN O.S.149/2010 OF THE MUNSIFF| ||MAGISTRATE COURT, PERINTHALMANNA DATED| ||12/02/2018.| /TRUE COPY/ PS TO JUDGE