When appellate court should remand case for de novo re- trial?

 The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order 41, Rule 23A of the Code so as to remand the case to the trial Court for a de novo trial.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 474 of 1988

Decided On: 09.08.2002

Khurshed Banoo Vs. Vasant Mallikarjun Manthalkar

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Whether court can rely on commissioner report even if court commissioner is not examined?

 The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. 

IN THE HIGH COURT OF BOMBAY

First Appeal No. 474 of 1988

Decided On: 09.08.2002

Khurshed Banoo Vs. Vasant Mallikarjun Manthalkar

Hon'ble Judges: 

A.M. Khanwilkar, J.

Citation: AIR 2003 Bom 52

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Whether court can call fresh court commissioner report if new party is added to suit?

At this juncture it would be relevant to extract para 6 of the order of this Court dated 27.01.2009 made in C.R.P. No. 3438 of 2008 while allowing the impleading petitions of the revision petitioners, wherein this Court has held as follows:

"I would like to recollect and call up, the common or cardinal Principle of law that in partition suits, even third parties could be allowed to be impleaded as parties so that whatever shares the third parties acquired in the suit property from the co-sharers, they would be able to work out their equities. Such third parties cannot put forth any new plea, but only pray for equities and nothing more".

17. The above order made by this Court envisages that justice and equity are paramount. Only on taking into the said fact this Court has earlier allowed the revision petitioners impleading application and thereby the revision petitioners were impleaded in the year 2009, whereas the records disclose that the earlier report has been submitted on 03.01.2008 itself, i.e., prior to the impleadment of the revision petitioners. In this context the contention of the revision petitioners that since the revision petitioners were not parties to the original partition suit, whereas they were only impleaded at final decree proceedings and hence all their efforts and their case put forth before the Advocate Commissioner was not considered, deserves to be considered. Therefore this Court in the interest of justice is of the view that only a proper report submitted after due consideration of all relevant documents and noting down of the physical features of the suit properties in the presence of all the parties to the suit, either was a party or was impleaded subsequently, will enable the Trial Court to arrive at a correct and just decision. It is to be noted that in the case on hand since the reissuance of warrant is prayed in respect of the very same Advocate Commissioner, to inspect the suit property, this Court do not have any hesitation to allow the revision petitioners' application. 

IN THE HIGH COURT OF MADRAS

CRP(PD) No. 1308 of 2013 and M.P. No. 1 of 2013

Decided On: 25.01.2017

 M. Ammasayappan and Ors. Vs. Muthusamy and Ors.

Hon'ble Judges/Coram:

M.V. Muralidaran, J.

Citation: AIR 2017 Madras 246

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Whether court commissioner report can be relied on if notice is not served to one of parties?

In view of the principle enunciated in these decisions, law is well settled that Rule 18 of Order 26 is mandatory. It is the duty of the court to direct that the parties to the suit shall appear before the survey knowing commissioner in person or by their agents or pleaders at the time of local investigation. In the absence of notice by the court, notice issued by the commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence.

IN THE HIGH COURT OF ORISSA

Civil Revn. No. 461 of 1983

Decided On: 13.05.1986

 Chaitan Das Vs. Smt. Purnabasi Pattnayak and Ors.

Hon'ble Judges/Coram:

K.P. Mohapatra, J.

Citation: AIR 1988 Ori. 52,

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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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Can Advocate Commissioner challenge order setting aside his report filed in a suit?

Code of Civil Procedure, 1908 - Order XXVI - Can the Advocate Commissioner challenge the order setting aside his report filed in a suit and appointing another to execute the warrant of appointment? Held, The Advocate Commissioner has no right to be heard before his report is set aside and is not also a person aggrieved by the order appointing another to execute the warrant of appointment.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                         MR.JUSTICE V.CHITAMBARESH

                WEDNESDAY, THE 30TH DAYOF JULY 2014

                                    OP(C).No. 1710 of 2014 ()

                     

          B.SUBHASH,  Vs  State of kerala

Citation; AIR 2014 kerala 206

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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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Procedure to be followed by the Court if commissioner report is not free from blemish

 It is stated that the report of the Commissioner is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. If the Court finds that the report of the Commissioner is not free from blemish and there is discrepancy in the evidence of the Commissioner and his report which is likely to mislead the Court, the right course for the Court would be to reject the report of the Commissioner, so also his evidence.

The report of Commissioner regarding measurement of the land in dispute has been discarded as it was found that there was no fixed point available near the dispute plot and it was not possible to carry out the measurement from the point that was available as no line was properly visible from there and, therefore, the Commissioner had to set up two imaginary points with the help of the map and carry out the measurement of the land in dispute and, therefore, the High Court found that the report of the Commissioner suffers from fundamental error as there could not be any guarantee of accuracy of the measurement in the process adopted by the Commissioner. The Court further observed that the order of the Court accepting the report of the Commissioner cannot be sustained. In the case before hand, the learned Counsel for the appellant has rightly pointed out from the evidence of Deotale (P.W. 1) that no permanent points were fixed or located before starting the measurement of land in dispute. The witness Deotale however admitted that he fixed two points but did not measure the distance between those two points and, therefore, the correctness of the two points could not be ascertained. The first Appellate Court has not taken into consideration this piece of evidence. It goes without saying that when the land is measured by plain table method the authority measuring the land has to locate permanent fixed points since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, he has to find out other permanent structures near about the plot and take measurement. In no circumstances, the surveyor should not have set up imaginary points with reference to the map by which process there cannot be any guarantee of accuracy of the measurement. Therefore, it has to be said that the first Appellate Court fell into error of not appreciating such fundamental errors committed by Deotale (P.W. 1) while measuring the land. In addition to this, what is found on record by me is that the map Ex. 30 no where points that permanent fixtures are noted by Deotale muchless of the trees which were standing on the common Dhura of the land and as the evidence stands these trees were standing since the time the land was purchased by the plaintiff and defendant. It is also pertinent to note that in the map Ex. 30 besides defendant, encroachment is claimed to have been made by others but the witness had not measured the lands of other persons including defendant. He has also not indicated in the map Ex. 30 the total acreage of the land owned by plaintiff that was found at the time of measurement. The position of Nali is admittedly on the Northern side of the common Dhura. That is also not shown correctly in the map Ex. 30. This relevant material in the evidence and serious fundamental error in the measurement materially affects the accuracy and authenticity of the measurement. Therefore, the first Appellate Court committed an error in accepting the evidence of Deotale (P.W. 1) and map Ex. 30 as conclusive evidence supporting the claim of plaintiff as to encroachment.

Bombay High Court

Govind S/O Raoji Katole vs Ganpati S/O Tukaramji Khanke Dead ... on 21 September, 2001

Equivalent citations: 2002 (1) BomCR 124

Author: P Brahme

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Whether Commissioner report if it is not challenged by any of parties, is binding on the Court?

Law is equally well settled that the Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court. When parties file no objection to the Commissioner's report, the Court rightly accepts the report; but such acceptance by itself does not preclude the parties from challenging the same by cross-examining the Commissioner at the trial or by examining witnesses and proving documents to nullify the effect of the Commissioner's report or to place materials from the report itself to prove that the same cannot be relied upon.

Orissa High Court

Kantaru Sahu And Ors. vs Dharma Sahu And Anr. on 19 July, 1983

Equivalent citations: AIR 1983 Ori 259

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