Whether court should dismiss the suit if there is irregularity in court commissioner report?

 The fact that the Local Commissioner’s report, and for that matter a
properly drawn up report, is requisite in the present case for the purpose of
elucidating the matter in dispute is not of any debate, for the order dated
24.01.1991 passed by the First Appellate Court having attained finality
whereby, additional issues were remitted for finding on the basis of Local
Commissioner’s report. In the given set of facts and circumstances, we are
clearly of the view that if the report of the Local Commissioner was suffering
from an irregularity i.e., want of following the applicable instructions, the
proper course for the High Court was either to issue a fresh commission or to
remand the matter for reconsideration but the entire suit could not have been
dismissed for any irregularity on the part of Local Commissioner. To put it
differently, we are clearly of the view that if the Local Commissioner’s report
was found wanting in compliance of applicable instructions for the purpose of
demarcation, it was only a matter of irregularity and could have only resulted

in discarding of such a report and requiring a fresh report but any such flaw,
by itself, could have neither resulted in nullifying the order requiring
appointment of Local Commissioner and for recording a finding after taking
his report nor in dismissal of the suit. Hence, we are unable to approve the
approach of High Court, where after rejecting the Commissioner’s report, the
High Court straightway proceeded to dismiss the suit. The plaintiffs have
been asserting encroachment by the defendants on their land and have also
adduced oral and documentary evidence in that regard. As noticed, the First
Appellate Court had allowed the appeal and decreed the suit filed by the
plaintiff not only with reference to the Commissioner’s report but also with
reference to the other evidence of the parties. Unfortunately, the High Court
appears to have overlooked the other evidence on record.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8285 OF 2009

RAM LAL VS. SALIG RAM 

Dinesh Maheshwari, J.
Dated: 4th February, 2019.

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Precaution to be taken by court while appointing second court commissioner

 The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal


position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.


(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition


precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.



(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

   

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

   PRESENT:

     MR.JUSTICE P.R.RAMACHANDRA MENON
                                  &
     MR. JUSTICE P.SOMARAJAN

     15TH DAY OF DECEMBER 2016

                      RSA.No. 733 of 2004 

            FRANCIS ASSISSI, Vs   SR.BREESIYA
     

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