Jagmohan Sood Vs Vinay Sood — Himachal Pradesh HC (2025) — LawSathi Research

Jagmohan Sood Vs Vinay Sood — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Petition allowed; parties directed to appear before the Executing Court on 10.04.2025; Executing Court to examine the Commissioner, then give the respondents ample opportunity to demonstrate their objections deserve acceptance and the petitioner adequate opportunity to lead evidence in support of the Local Commissioner's report. Pending miscellaneous application(s), if any, stand disposed of.

Issue for consideration

Whether the impugned order allowing the respondents' objections to the Local Commissioner's report is vitiated on account of non-examination of the Commissioner. +1 more

Court's answer

As a rule of practice (consistent view of this Court, per Om Parkash v. Ved Parkash AIR 2000 HP 45 and the cases following it), the Commissioner should first be examined with reference to the objections, if any; if the Commissioner's statement shows ground for further inquiry, the parties should be allowed to produce evidence or the Commissioner directed to amend his report.

Ratio / Principle

The respondents' plea rests on law pertaining to appointment of a Local Commissioner under Order 26 Rule 9 CPC, which has no applicability to the facts of this case, where the Commissioner was appointed under Order 26 Rule 13 CPC.

Key takeaways

The petition is allowed; parties are directed to appear before the Executing Court on 10.04.2025, where the Commissioner shall be examined, the respondents given ample opportunity to show their objections deserve acceptance, and the petitioner adequate opportunity to lead evidence in support of the Local Commissioner's report.ratio¶32

Detailed headnote1 paragraphs

High Court of Himachal Pradesh, Shimla (CMPMO No.96/2023, decided 01.04.2025, Bipin Chander Negi, Judge — oral): Where a Commissioner is appointed under Order 26 Rule 13 CPC, the consistent view of this Court (law laid down in Om Parkash v. Ved Parkash, AIR 2000 HP 45, followed in Gopal Dass v. Bismanchali, 2009(2) Shim. LC 250, and Joginder Pal v. Devi, 2017 (Supp) Shim. LC 450) is that, as a rule of practice, the Commissioner should first be examined with reference to any objections, and only thereafter should parties be allowed to produce evidence or the Commissioner be directed to amend his report. Law pertaining to commissioners appointed under Order 26 Rule 9 CPC has no applicability to appointments made under Order 26 Rule 13 CPC. Accordingly, the Civil Judge, Sr. Division, Shimla's order dated 23.12.2022 allowing the respondents' objections to Local Commissioner Parveen Zinta's report dated 20.09.2021 was challenged; the petition was allowed and the parties directed to appear before the Executing Court on 10.04.2025, where the Commissioner is to be examined and both sides afforded opportunity — the respondents to press their objections and the petitioner to lead evidence supporting the report.

2025:HHC:8630

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No.96/2023.

Date of Decision: 01^st April, 2025.

Jagmohan Sood .....Petitioner

Versus

Vijay Sood & Ors. ….Respondents

Coram

The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

Whether approved for reporting?¹ For the Petitioner: Mr. Sumit Sood, Advocate.

For the Respondents: Mr. Deepak Gupta, Advocate.

Bipin Chander Negi, Judge (oral).

Present petition has been filed laying the challenge to

order dated 23.12.2022 passed by learned Civil Judge, Sr. Division, Shimla, whereby objections filed by the present respondents to the report of the Local Commissioner-Parveen Zinta dated 20.09.2021 have been allowed.

2. Admittedly, the Commissioner, in the case at hand, has been appointed in terms of Order 26 Rule 13 CPC. The procedure of the Commissioner so appointed has been detailed in Order 26 Rule 14. Learned counsel for the petitioner submits that on account of non-examination of the Commissioner, the impugned order is vitiated. Per contra, learned counsel for the respondents submits that the report of the Commissioner is a part of the record and therefore, the report cannot be overlooked or rejected on the specious plea of non-examination of the Commissioner as a witness, since it is a part of the case.

3. Heard counsel for the parties and perused the pleadings.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes

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4. Order 26 Rule 14 is reproduced hereinbelow for ready

reference:-

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 com-mission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the 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 trans-mitted 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.

5. A consistent view of this Court in terms of law laid down

in Om Parkash Vs. Ved Parkash & Ors. AIR 2000 HP 45, which was followed in Gopal Dass and Ors. V. Bismanchali, 2009(2) Shim. LC 250 and 2017 (Supp) Shim. LC 450, titled Joginder Pal & Ors. Vs. Devi and Ors is that as a rule of practice, the Commissioner should first be examined with reference to the objections if any, and if it appears from the statement of the Commissioner that there is ground for further inquiry into any matter, which is raised in objections, then the parties should be

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allowed to produce evidence or the Commissioner directed to amend his report accordingly.

6. The plea of the learned counsel appearing on behalf of the respondent is based on law pertaining to appointment of Local Commissioner under Order 26 Rule 9, CPC. Hence, has no applicability to the facts and circumstances of the case at hand.

7. In view of the aforesaid, the present petition is allowed and parties are directed to appear before the Executing Court on 10.04.2025. The Executing Court shall examine the Commissioner and thereafter provide ample opportunity to the respondents herein to show/demonstrate that the objections filed deserve to be accepted. Needless to say, the petitioner herein shall also be provided with adequate opportunity to lead evidence in support of the report of the Local Commissioner and to show that it does not require any variation, alteration etc. and that what has been held by the Commissioner is just and equitable.

Pending miscellaneous application(s), if any, shall also stand disposed of.

01^st April, 2025 (Gaurav Rawat)

(Bipin Chander Negi) Judge