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Bhutto Sheikh, 22 W. R., 350); or the commission has been granted without sufficient reason-Shah Nuthoo vs. Ghanessam, 8 W. R., 267, or irregularly-Umbica Churn vs. Goluck Chunder, 9 W. R., 596; Rajnath vs. Doorga, 12 W. R., 136; but see Ram Dhun vs. Ram Mones, 21 W. R., 280; otherwise if the Ameen has held the enquiry beyond the territorial jurisdiction of the Court directing it-Nidhoo Sircar vs. Phillipe, 10 W. R., 153.
Form Part of the Record.—The report and deposition are to be taken as evidence in the case-not conclusive evidence-and form part of the record-Azim vs. Alimooddeen, 17 W. R., 270 ; and must be taken into consideration by the Appellate Court-Rajnath vs. Doorga, 12 W. R., 136; and unless any objection is raised to the report in the first Court or in the grounds of appeal, it should not be listened to-Seth Gujmull vs. Chahee, 2 Ind. App., 34; but see Troeedie vs. Poorno Chunder, 2 W. R., 138.
The value of the report depends upon the evidence on which it is founded-Braja Sundari Deoya vs. Punchanun Bose, 3 R. J. and P., 339; Issur Chunder vs. Joogul Kishore, 21 W. R., 281. A Court may reject part and accept part-Poresh Nauth Mookerjee vs. Martin, 1 W. R., 93.
Agreement.-If the servants of all the parties present point out the same boundary or starting point these must be taken to be correct-Hemmuni Singh vs. Canty, I. L. R., 17 Cal., 304.
Appeal: Power of Appellate Court.-An Appellate Court should not interfere with the result of a local enquiry except on clearly defined and sufficient grounds, which must be stated in its judgment-Surut Soonduree vs. Prosunno Coomar, 15 W. R., 20; 13 Moore, 607; but see Protab Chunder vs. Surnomoyee, 19 W. R., 361 ; especially if it has been accepted by the first Court. Nor should a Court of first instance question the correctness of map attached to a report, which is not impugned by either party-Brijo. nath vs. Lall Meah, 14 W. R., 391 ; and the Ameen's report may be looked at to explain a map-Mahamed Anwar vs. Raj Chunder, 17 W. R., 522. If the Court finds the report deficient in any point, it can send for the Commissioner and examine him-Sheo Dyal vs. Hodgkinson, 24 W. R., 342; on the other hand, the report should not be made the basis of a judgment to the total disregard of the other evidence on the record-Bustee Sahoo ys. Jeo Narain, 24 W. R., 338.
Practice.-On the return of the Commissioner's report, a day should be fixed to hear objections and notice given to the parties--Ram Narain vs. Goburıhun, 21 W. R.. 2. The report cannot be rejected because the Ameen's remuneration has not been paidJagat Kishore vs. Dinanath, I. L. R., 17 Cal., 281. Extension of Time.-See Hormusji vs. Bomonji, I. L, R., 9 Bom., 250.
C.-- Commissions to Examine Accounts. 394. In any suit in which an examination or adjustment
of accounts is necessary, the Court may Com mission to examine or adjust ac- issue a commission to such person as it counts.
thinks fit directing him to make such examination or adjustment.
Act VIII of 1859, section 181. This section applies to H. C. and P. S. C. C.
Appeal.-A decree directing the defendant to account is a final decree, and as such appealable to the Privy Council under section 595, post-Rahimbhoy vs. Turner, Ind. App., 6.
The High Court at Calcutta has held, that when the books are in Court, and not impugned, à commission should not issue, and if it does issue, in no case can the Commissioner examine witnesses -Chand Ram vs. Brojo Gobind, 19 W. R, 11. This decision cannot be now considered good law (see section 398).
Where a decree has been passed referring the matter to the Commissioner's office to have accounts taken and property sold, the Court has still power to add a party to the suit-Vakatchand Lakhmichand vs. The Advocate-General, 8 Bom., 96.
As to the procedure in taking accounts, see Degamber Mozumdar vs. Kallynath, I. L. R., 7 Cal., 654 ; Annoda Persad vs. Dwarkanath, I. L. R., 6 Cal., 754.
395. The Court shall furnish the Court to give Commissioner necessary in- Commissioner with such part of the prostructions.
ceedings and such detailed instructions as appear necessary,
and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the enquiry, or also to report his own opinion on the point referred for his examination. The proceedings of the Commissioner shall be received in
evidence in the suit, unless the Court has Court to receive Commissioner's pro
reason to be dissatisfied with them, in which ceedings or direct fur- case the Court shall direct such furth ther inquiry.
inquiry as is requisite. Act VIII of 1859, section 181. This section applies to H. C. and P. S. C. C.
As to the nature of the certificate or report made by the Commissioner, what it should contain and how far the Court can deal on motion with matters before him, see the case Rustomji vs. K'essowji, I. L. R., 3 Bo 161.
The Commissioners under this section need not be sworn or affirmed-Nursing vs. Narain, 3 Alla., 217.
Practice.-In Madras, Appellate Courts do not enter into the details of an account taken by a Commissioner and discussed in the first Court, especially if no particular items are objected to: they only decide the principle upon which the account should be taken-Venkata Reddi vs. Venkatara Maiya, 1 Mad., 418; Sarapu Venkadesan vs. Malai Isvaraiya, id., 1; and where a Commissioner was appointed to investigate the state of accounts between the parties, and the judgment was founded on his report, the High Court, on regular appeal, refused to take a fresh account, Sarapu Vankadesan vs. Malai Isvaraiya, 1 Mad., i. In Bombay the opposite opinion prevails, and there the Appellate Courts, if dissatisfied for any reason, direct further enquiry-Ahmed vs. Khasaji, 6 Bom., 148.
Where an Ameen was directed by an order of Court to adjust an account, and no objection was taken to his proceedings by the plaintiff in whose presence the account was taken : Held, the account should not have been disturbed by the Appellate CourtKantee Chunder vs. Gopee Madhub, 11 W. R. 3. See “ APPEAL," section 393, ante.
Plaintiff sued his mohurrir the defendant for an account of such sums as he would be found to have misappropriated (estimating it at 2,500 rupees) and filed his accountbooks in Court without alleging that they had been tampered with : Held, that, he should have made up the account himself, and should not have been allowed an Ameen-Chand Ram vs. Brojo Gobind, 19 W. R., 14.
Consent.--In a suit for account it was ordered, by consent of parties, that the cause should be referred to a Commissioner to take accounts, who in taking them was to decide on all questions of fact, leaving questions of law to the Court: Held, that the reference was different from the ordinary reference under section 181, Act VIII of 1859, and that it was doubtful whether the Court
could re-open a question of fact, relating to the account decided by the Commissioner-Watson vs. Nghedee, 1 Ind. App., 346.
Extension of Time.--See Hormusji vs. Bomonji, I. L. R., 9 Bom., 250.
Costs: Regular Suit.-Where the costs of a Commissioner were not prepaid, and though defendant was ordered in the decree to pay costs of the suit the amount was not entered in it: Held, the Commissioner could sue the party who moved the Court to appoint him for work and labour, but not the party made liable for costs-Gopatratnamayyav ys. Bupala, I. L. R., 4 Mad., 399.
Limitation. As to mutual open and current accounts, see Lakshmayya vs. Jagannaththam, I. L. R., 10 Mad., 199; Satayya vs. Rangareddi, id., 259.
D.-Commission to make Partition. 396. In any suit in which the partition of immoveable
property not paying revenue to Government Commission to make partition of non-reve
appears to the Court to be necessary, the nue-paying immoveable Court, after ascertaining the several parties property.
interested in such property and their several rights therein, may issue a commission to such persons as it thinks fit to make a partition according to such rights.
The Commissioners shall ascertain and inspect the proProcedure of Com- perty, and shall divide the same into as missioners.
many shares as may be directed by the order under which the commission issues, 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 sbares.
The Commissioners shall then prepare and sign a report, or (if they cannot agree) 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 either quash the same and issue a new commission, or (where the Commissioners agree in their report) pass a decree in accordance therewith.
This section is new. It applies to H. C. and P. S. C. C.
Decree. -An order directing a partition is a decree-Bholanath Dass vs. Sonamoni, I. L. R., 12 Cal., 273 ; Bepin Behari vs. Lalmohun, I. L. R., 12 Cal., 209 Dulhin vs. Radha, I. L. R., 19 Cal., 463.
Value of Suit.—Where the relation of the persons is that of coparceners the value of the property and not the share claimed determines the jurisdiction; otherwise if they are only joint owners--Ramayya vs. Sattarayudu, I. L. R., 13 Mad., 25; but in Allahabad and Bombay apparently the value of the share is decisive-Hikmet Ali vs. Waliunnissa, I. L. R., 12 Alla., 506; Lakshman vs. Babaji, I. L. R., 8 Bom., 31 ; while in Calcutta the value of the whole property is taken as the guide-Boidya Nath vs. Makhan, I. L. R., 17 Cal., 680.
Not Paying Revenue.- A suit for partition by metes and bounds of revenue-paying land is not cognizable in the Civil Court, though a suit to define plaintiff's share and then to refer the partition to the Collector is within jurisdiction-Rutlun Monee vs. Brojo Mohun, 22 W. R., 11 ; Ajoodhia Lall vs. Gumani, 2 d. L. R., 134 ; Chundernath Nundi vs. Hur Narain, I. L. R., 7 Cal., 153 ; Zahrun vs. Gouri, I. L. R., 15 Cal., 198, followed in Debi vs. Sheo Lall, I. L. R., 16 Cal., 203.
It was held under the previous law that in effecting a partition under this section, the rules laid down in Regulation XIX of 1814 (repealed) should be followed as far as they were applicable-Janokee vs. Luchmun, 17 W, R., 137.
Commissioners.-The Court is not bound to appoint more than one Commissioner -Gyan Chunder vs. Durga Churn, 8 C. L. R., 415; I. L. R., 7 Cal., 318.
Commissioners have been looked on as officers of Court acting by a majority, although there is no clause so directing in the commission-Rajendra Matilal vs. Ramnarayan Matilal, 3 B. L. R., App., 3; it is now different as regards Commissioners appointed to make a partition. Commissioners have no lien on the return for their fees, and cannot refuse to give it up until they are paid-Rajmoheeny Dabee vs. Muddoosoodun Dey, Bourke, 24.
Practice.- As to the mode of attacking a report in Bombay, see Navrottam vs. Harichand, I. L. R., 13 Bom., 368.
E. General Provisions. 397. Before issuing any commission under this Chapter
the Court may order such sum (if any) Expenses of commission to be paid into
as it thinks reasonable for the expenses Court.
of the commission to be, within a time to be
fixed by the Court, paid into Court by the party at whose instance or for whose benefit the commission is issued.
Act VIII of 1859, section 182. This section applies to H. C. and P. S. C. C.
In a suit for partition the costs of a commission to examine a lady issued at her own request were made costs in the suit-Monirooddin Biswas vs. Shoshebhusun, I. L. R., 5 Cal., 866.
398. Any Commissioner appointed under this Chapter Powers of Commis- may, unless otherwise directed by the order sioners.
of appointment,(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him ;
(6) call for and examine documents and other things relevant to the subject of enquiry ;
Ecclesiastical Courts are very unwilling to let wills out of their custody. The Supreme Court has, where a commission issued in Calcutta in regard to a will, directed its Registrar to produce the will before the Commissioners-Unnopoornah Dabée vs. Kolochomoney, Fulton, 83.
(c) at any reasonable time enter upon or into any land or building mentioned in the order.
Act VIII of 1859, section 182. This section applies to H. C. and P. S. C. C.
Authority.-Instructions to a Commissioner should issue in the presence of the parties, and if they do not object, they cannot afterwards complain if the Commissioner carried out his instructions—Bissessur vs. Kanchun, 11 W. R., 155. Unless limited by the wording of the commission-Shibo Soonduree vs. Ram Chunder, 17 W. R., 469, he has the widest power and discretion to enquire into the matters referred to him for investigation-Mohun Lall vs. Urnopoorna, 9 W. R., 566 ; but he cannot go beyond his orderRam Dhun vs. Ram Moner, 21 W. R., 280; Bustee Sahoo vs. Jeo Narain, 24 W. R., 338, or delegate his authority-Meer Hesmunt Ali vs. Zullam, 1 Shome, 15. Thus, if he is directed to make an enquiry into mesne profits he should not enquire into the date of dispossession, which should have been fixed by the decree--Bejoy Gobind vs. Kalee Prosunno, 16 W. R., 291. So, he should not record evidence if expressly restricted to a comparison of the disputed land with a chitta- Doorga Churn vs. Neem Chand, 24 W. R. 203. So, where an Ameen asked leave to enquire into the title by inspecting documents, and was refused, it was held that he could not investigate at all the title or possessionShiboo Soonduree vs. Ram Chunder, 17 W. R., 469.
In Bombay, on the Original Side, an attachment will issue to compel a party to a suit to obey an order made by a Commissioner taking accounts, upon the certificate of the Commissioner that such order has been made and disobeyed, without, in the first instance, making such order a rule of Court-Dhuranılhardas vs. Bhau Gobind, 10 Bom., 4. 399. The provisions of this Code relating to the sum
moning, attendance and examination of ation and punishment witnesses, and to the remuneration of, and of witnesses before penalties to be imposed upon, witnesses, Commissioner.
shall apply to persons required to give evidence or to produce documents under this Chapter, whether the commission in execution of which they are so required has been issued by a Court situate within, or by Court situate beyond, the limits of British India.
For the purposes of this section, the Commissioner shall be deemed to be à Court of Civil Judicature.
This section applies to H. C. and P. S. C. C.
A person attending before an arbitration appointed by order of Court to take a reference is protected from arrest-In the matter of Jaggeshur Roy, 5 C. L. R., 170. 400. Whenever a commission is issued under this Chap
ter, the Court shall direct that the parties Court to direct parties to appear before to the suit shall appear before the ComCommissioner.
missioner in person or by their agents or
pleaders. Procedure ex-parte.
If the parties do not so appear the
Commissioner may proceed ex-parte. Act VIII of 1859, section 181. This section applies to H. C. and P. S. C. C.
A party refusing to appear before an Ameen is not at liberty afterwards to take any objection to his report-Bamun Doss vs. Brojo Kishore, 6 W. E., 130.
The Commissioner may proceed ex-parte, but is he compelled to do so? In the case of Essan Chunder vs. Soorjo Lull, Marsh., 139, it was decided that where a plaintiff fails to appear before a Commissioner and the defendant appears, the plaintiff is liable to have his suit dismissed with costs.
Charges against Ameens should be quickly inquired into-Abdool Kureem vs. Campbell, 8 W. R., 172.
SUITS BY PAUPERS. Suits may be brought
401. Subject to the following rules, in formd pauperis.
any suit may be brought by a pauper. Explanation.--A person is a pauper
" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit.
Act VIII of 1859, section 297. This section applies to H. C. and P. S. C. C.
Subject-matter of the Suit.-The inquiry into pauperism under sections 408 and 409, takes place before any suit is in existence, where on such an investigation the other side deposited articles claimed of the value of one hundred rupees, it was held that these articles did not form any portion of the subject matter of the suit, and the petitioner was not a pauper-Dwarkanath vs. Madhavrav, I. L. R., 10 Bom., 207.
Plaintiff.-A plaintiff may be allowed to carry on as a pauper a suit instituted in the ordinary way-Nirmul Chandra vs. Doyal Nath, I. L. R., 2 Cal., 130; Revji vs. Shakharam, I. L. R., 8 Bom., 615. A Hindu father's wealth is not a bar to a son suing as a pauper to prove his adoption-Chutoo Ram Tewari, Petitioner, S. D. Sum. Decis., Sept.7, 1846; nor does a husband's wealth preclude a wife from suing as a pauper, when she cannot claim from him the means of carrying on the suit-Laloonissa, Petitioner, S. D. Sum. Decis., Dec. 15, 1845. See also Missur vs. Mutty Lall, Fulton, 490.