When report of court commissioner is admissible even though it is objected by tenant?

The first challenge put forth by Sri.George Cherian

  during the course of his arguments was with respect to the

  area of the petition schedule room, which, according to


the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.

According to him, both the authorities below went wrong

in holding that the petition schedule room is having an

area of 250 sq.ft. on the basis of Ext.C1, the report of the

Advocate Commissioner, which was marked without his

resistance being considered. A scrutiny of the relevant

records reveal that objection was filed by the tenant

against the facts reported by the Advocate Commissioner

in his report. It is urged by the learned counsel that the

Advocate Commissioner was not examined by the

landlord despite the incorporation of her name in the

witness list filed as early as on 10.12.2013 and therefore,

the opportunity to cross-examine was denied to him.

According to the learned counsel, in the said

circumstances, Ext.C1 commission report ought not have

been relied upon by the Rent Control Court. It is true, the


objections filed by the tenant find a place in the case

records forwarded to this court from the Rent Control

Court. We could not notice any falsity in the statement of

the counsel that the Commission report was marked as

Ext.C1 without examining the Advocate Commissioner.

In the above circumstances, it is pertinent to have a look

at the legal principles enunciated in Order 26 Rule 10

which is reproduced hereunder for convenient reference:

    "Procedure of Commissioner:- (1) The Commissioner,

    after such local inspection as he deems necessary and after

    reducing to writing the evidence taken by him, shall return

    such evidence, together with his report in writing signed by

    him, to the Court.

    (2) Report and depositions to be evidence in suit.- The

    report of the Commissioner and the evidence taken by him

    (But not the evidence without the report) shall be evidence

    in the suit and shall form part of the record, but the Court or,

    with the permission of the Court any of the parties to the

    suit may examine the Commissioner personally in open

    Court touching any of the matters referred to him or

    mentioned in his report, or as to his report, or as to the


      manner in which he has made the investigation.

      (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."


9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI

  envisages that the report of the Commissioner and the

  evidence taken by him shall be evidence in the suit and

  shall form part of the record. But, it is left open for the

  court or either of the parties to a lis after getting

  permission of the court to examine the commissioner

  personally in open court regarding any of the matters

  reported to by the latter in his report or the manner in

  which the investigation has been conducted by him.

  Upon perusal of the records of the case obtained from the

  Rent Control Court, we are convinced that the

  commission report was objected to by the tenant in

  writing. It is the argument of Sri.George Cherian that


despite the objection raised by the tenant, the landlord

abstained himself from taking measures to examine the

Advocate Commissioner, and thereby opportunity was

denied to the former to cross-examine him. According to

him, such being the circumstances, Ext.C1 ought not to

have been relied upon by the authorities below to arrive at

the finding regarding the area of the petition schedule

premises as 250 sq.ft. We also could not find fault with

the Rent Control Court placing reliance upon Ext.C1 for

the twin reasons. Firstly, the commission was not an ex-

parte one. Secondly, the tenant has not availed of his

entitlement under Order 26 Rule 10(2) to examine the

Advocate Commissioner to elicit explanation on the

matters of resistance.       If the tenant applied for

examination of the Advocate Commissioner under sub-

rule (2) of Rule 10 of Order 26, the court would not have


 any other option than to grant him permission to examine

 the Advocate Commissioner. In such a circumstance, it is

 contemplated in the provision referred to supra itself that

 the reliability of the report in evidence would be subject

 to the outcome of the facts elicited in the cross-

 examination. In the case on hand, the tenant, having not

 applied for getting permission to exercise the statutorily

 provided      right   of    examination    of   Advocate

 Commissioner, cannot now be heard to say before this

 Court exercising the powers of revision that the Rent

 Control Court went wrong in arriving at 250 sq. ft. as the

 area of the tenanted premises solely on the basis of

 Ext.C1.      The argument of Sri.George Cherian is

 untenable for the above reason and the authorities below

 cannot be found fault with in taking such a stand.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

            MR.JUSTICE K.SURENDRA MOHAN
                                   &
                MRS.JUSTICE MARY JOSEPH

        WEDNESDAY, THE 5TH DAY OF AUGUST 2015
                      R C Rev.No. 297 of 2014 ()
                     
       RAJESH R.KARTHA
     Vs
       K.A. ISMAIL
 Citation: AIR 2016(NOC)292 Kerala

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How to appreciate Court Commissioner's report and his opinion?

 The next grievance of this petitioner is that the plan and report of the Commissioner cannot be admitted in evidence. In regard to it, this objection is obviously made without fully comprehending the scope of the relevant provisions of R. 10 which has been reproduced above. The Commissioner's report does not automatically become evidence and the parties are entitled to object to the commissioner's report and prove their objections by examining the commissioner or other witnesses: -- 'Harcharan Das v. Danpat Mal', AIR 1917 Lah 57 (E); -- 'Ajodhyaprasad Singh v. Kamal Narasin Singh'-, AIR 1917 Pat 278 (F) and -- 'Sitarama v. Ramprasad Ram', AIR 1915 Cal 280 (G). It is within the discretion of a Judge to accept the report of Commissioner: -- 'Sone Kuar v. Baidyanath' AIR 1926 Pat 462 (2) (H) -- 'Jadavendra v. Gajendra Naraindas', AIR 1919 Cal 946 (I). The Commissioner's report and the opinion he expressed on the evidence is merely a piece of evidence to be considered by the Judge. It does not become 'ipso facto' evidence. 'Jnanda Sundari Rai v. Pramada Sundara Rai', AIR 1934 Cal 116 (J). The person behind whose back the Commissioner has been appointed is entitled to cross-examine him. 'Ramnath Ramakrishna v. Wasudeo', AIR 1947 Nag 56 (K). Though under Order 26, Rule 10 the Commissioner's report forms part of the record and it is incumbent on the Court to consider the contents -- 'Venkatarama Aiyar v. Ponnusami Padayachi', AIR 1935 Mad 918 (L).

Madras High Court

In Re: P. Moosa Kutty vs Unknown on 16 December, 1952

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