Saji Koduvath, Advocate, Kottayam.

Key takeaways

• Commission for local investigation is appointed to ‘elucidate‘ matters in dispute.
• A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
• “Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
• A commissioner cannot be asked to find out the physical possession of a property.
• A Commission report will be ‘evidence’ even if it is not marked or exhibited.
• Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
• It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
• When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report. The parties should not be pushed to suffer for the lapse or mistake of the commissioner.
• If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
• There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
• Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

• Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
  • (a) to examine any person;
  • (b) to make a local investigation;
  • (c) to examine or adjust accounts; or
  • (d) to make a partition;
  • (e) to hold a scientific, technical, or expert investigation;
  • (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
  • (g) to perform any ministerial act.

Commissions to Make Local Investigations

Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

• In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
• Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. 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 deposition to be evidence in suit.
• Commissioner may be examined in person-
• 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 suit may examine the Commissioner personally in open Court touching any part 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) 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.

1. At what stage Commission is to be appointed?

• Any stage; including Appeal.

2. Can an ex-parte commission be ordered?

• Yes.
• (Rajbir Kaur v. S Chokasiri, AIR 1988 SC 1845; Maroli Achuthan v. Kunjipathumma, AIR 1968 Ker 28)

3. Who shall be appointed?

• Such person as the court thinks fit.

4. What is the purpose of appointing a commissioner?

• A commission is issued when it is requisite or proper in any suit for the purpose of elucidating any matter in dispute, etc.. (Subash Soman v. State of Kerala, 2019 -2 Ker HC 700, 2019 -2 Ker LJ 729)
• In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it was pointed out that the object of appointment of a commissioner was not to assist a party to collect evidence where the party can procure the same, and that an Advocate Commissioner was appointed, inter alia, for elucidating any matter in dispute; that is to decide any real controversy between parties.
• In New Meena Sahkari Awas Samiti Ltd. v. Addl. District Judge, 2016 (6) AWC 5988, referring the opening words in Rule 9, “in any suit in which the court deems a local investigation to be requisite or proper“, it is pointed out that the provisions of Order 26 Rule 9 of CPC makes it abundantly clear that an order of issuing Commission for the purposes of elucidating matters can be passed ‘only and only in case’ it is deemed to be requisite or proper by the court concerned.
• In the case of Debendranath Nandi v. Natha Bhuiyan, AIR 1973 Ori 240, it is held that the object of local investigation is to obtain evidence which from its peculiar nature can best be had from the spot. (see: New Meena Sahkari Awas Samiti Ltd. v. Addl. District Judge, 2016 (6) AWC 5988).
• In Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671, it was held that it was appropriate for the lover court to direct the investigation for demarcation of the disputed land by appointing a Local Commissioner under Order 26 Rule 9 of the CPC for the dispute in that case was being in respect of the encroachment of the suit land and  an application was filed under Order 26 Rule 9 of the CPC.
• In Ushabai Sharadchandra Bannore v. Wasudeo, 2004(2) Mh.LJ 594, it was held that in case of dispute of an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same; and it was held as under:
  • “In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again.”

5. What does the word ‘Elucidation‘ denote?

• Make clear by explanation or analysis; and not mere Collection of evidence.
• In New Meena Sahkari Awas Samiti Ltd. v. Addl. District Judge, 2016 (6) AWC 5988, it is observed that the expression ‘elucidate’ means to make lucid or clear, throw light upon, explain, enlighten.
• In Lekh Raj vs Muni Lal, AIR 2001 SC 996, it is held as under:  
  • “The question whether the roof was damaged by the landlord or was damaged because of the building being old and dilapidated is a question of fact, proof of it could only be, if at all, through leading evidence and not through a local Commissioner. A local Commissioner could only report the fact of existing condition of the building and not who did it. It was open for him, if appellant so desired for praying to the Court to grant time to lead evidence in this regard. Since court permitted, a local Commissioner to report, so it would have granted the prayers for leading evidence.”

6. Is the Commissioner enjoined with a role to report matters that are relevant in the suit, even if they are not specifically put to him (to ascertain)?

• Yes; though not explicitly asserted.
• (i)  O 26 r 10 says –
  • ‘after such local inspection as he deems necessary’;
• (ii) The Commissioner, in effect, is a ‘projection’ of the Court appointed “for a particular purpose” – Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33. It is:
  • ‘for the purpose of elucidating any matter in dispute‘.
• (ii) Order26 rule  16 that deals with the ‘Powers of Commissioners’ it is purposedly stated that the Commissioner may call for and examine documents and other things relevant to the “subject of inquiry“–
  • “Any Commissioner appointed under this Order may, unless otherwise directed by the Order of appointment….. (b) call for and examine documents and other things relevant to the subject of inquiry…”
• (iii) In Retnamma v. Mehaboob, 2013 -3 Civil CC 65 (Kerala) it is held as under:
  • “58. In short, the court shall confirm that commissioner has elucidated all relevant facts which will help the court to take a right decision in the case. “

7. Can a commissioner be deputed for making a fact-finding that amounts to determination of questions that raises in the suit?

• No.
• Duty of the court cannot be delegated.
• (Gopal Chettiar v. PAA Sahula Hameed, 1998 (3) LW 773; Devadoss v. A Duraisingh, 2002 (3) CTC 748). AIR 1935 Mad. 888; Rangayyakanantha v. Govinda Chatr, AIR 1970 Mys 314)

8. Is there ‘provision’ to raise “objection” to a commission report on ‘local inspection’?

• No.
• But, where an objection is filed by a party, the court cannot ignore it.
• O26 r10(2) says:
  • ” …. _{the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part 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.}“
• There is no (express) provision in O26 r10(2) for making ‘objection to a Commission report for local inspection’ as provided in O26 r 14 – for Partition.
  • _{(O26 r 14 – as regards Partition – says:  “the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same”)}.
• Legislative intent is clear from the aforesaid strong indications – (i) the dissatisfied party has to examine the Commissioner personally in open Court under O26 r 10, and (ii) the court has to ‘hear objections’ in O26 r 14. (Jawahar Lal v. Mangu Ram, (1988) 93 Pun LR 139 ; Balbir Dewan vs Naveen Chander, AIR 1989 Punj. 257).
• Commission report accepted without objection of the parties – parties are not precluded from challenging the evidence by cross-examination or giving other evidence : AIR 1966 Orissa 121.
• Court is not precluded from examining commissioner even if no objection: 1953 Pat. 133.
• CR  in another case can be admitted only on examination of the Commissioner: Sannappa  Vs. Anu Aiah – 1995 AIHC 6680.
• Acceptable legal position:
• It appears that the acceptable legal position is rendered in Retnamma v. Mehaboob, 2013-3 Civil CC 65 (K Hema, J.), where it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection was filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit. The Kerala High Court held further as under:
  • “60. If any objection is filed to the commission report by any of the parties, the court shall necessarily consider the same and pass appropriate order.
  • 68. …. If there is any merit in the objection raised, it would have been essential that the commission report be remitted with directions to measure the property etc., and file report in which event, there arises no question of examination of the commissioner to elicit any fact reported by him in the report.

9. Apart from ‘evidence’, can an “opinion” of commissioner be sought for? (Eg. Whether a building is fit for ‘residence’)

• No.
• Because, it will be a matter for the Court-determination.
  • Note: Express provision in O 26 r 12 (Commission for Account-Inspection) to give instructions specifying to report the Commission’s  “opinion” on the point referred. No such provision in O 26 r 9 and 10.

10. Can a commission be appointed to find out the physical possession of a property?

• No.
• In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
• See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
• Puttappa v. Ramappa, AIR 1996 Kant 257,
• Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
• Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
• D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
• Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
• Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
• KMA Wahab v. Eswaran, 2008 (3) CTC 597,
• Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
• S. Kalam v. V. Valliammai,  2021-7 Mad LJ 137,
• K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR  2020 SC 1496, it is observed:

• “270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
• 271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is  a proof of the fact that possession has been taken.”

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446,  2020-3 Ker LJ  574, 2020-3 KHC 613, as under:

• “15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

11. Will a Commission report be ‘evidence’ even if not marked or exhibited? Can it be marked after trial is over (or at the time of preparing judgment); or, in appeal?

• Yes.
• O 26 r 10 (2) says – ‘The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record.’
• In Johnson Kuriakose v. Fr.  Thomas Paul Ramban, 2019 1 KLT 6, it is observed that it is indisputable that the commissioner’s report forms part of the record in the case. Trial court has every right to look into the materials in the record to decide the disputes. Commissioner’s report cannot be excluded from consideration in the matter.

12. Can Commission Report alone be the basis for decision?

• No.
• In TK Krishnamurthy v. Tamil Nadu Water and Drainage Board, 2006 (5) CTC 178 it is held as under:
  • “9. The report of the advocate commissioner alone can never be the basis for deciding the suit as Commissioner should not be appointed to gather evidence to prove the case of the parties. Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence to come to a just conclusion.”

13. Can a Commissioner be appointed for seizing the books of account of a party to the suit in the exercise of its inherent powers?

• No.
• In Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218, it was held that ‘the Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff, which is passed by the Court is null and void’.

14. Can a commissioner be examined (invoking Order 26) on any matter other than that “(i) touching any part of the matters referred to him or (ii) mentioned in his report, or (iii) as to his report, or (iv) as to the manner in which he has made the investigation”?

• Cannot be, under Order 26.
• Because under O 26 r 10 (2) the Court or, with the permission of the Court, any party is not permitted to examine the Commissioner:
  • as to a matter that is (i) not asked for and (ii) not referred to in the report.
• Note 1: From O 26 r 10 (2) it comes out (the legislative intent) that examination is not permitted under Order 26 on such matters in the knowledge of the commissioner (even if it is there) or what he had actually seen. (The principle is obvious – it should have been got reported through the commission, by the dissatisfied party, by taking steps to get it ascertained after remitting back the report, or through a fresh commission).
• Note 2: It appears that the legislative-intent in O26 r 10 canvases for a ‘perfect (or perfected) report’, rather than a report ‘stand corrected by cross examination’.
• Note 3: It is with respect to a matter ‘(i) not asked for and (ii) not referred to in the report’; and not with respect to the accuracy of the report of Commissioner, in which case it is open to the parties either to cross examine the Commissioner or lead independent evidence instead of calling fresh report in the light of objection raised (Gopala Somayaji C v. R Madhava Pai, 1988(1) Kar LJ 499).

15. What is the purpose of examination of the commissioner in court (according to the provisions of Order 26)?

• It is for the determination – whether the report is to be remitted back for “such further inquiry” under rule 10(3), after setting-aside the (earlier) report or otherwise.
• This proposition is drifted from the conjoint reading of the following:
  • O26 r 10(2)
    • ^{“……. the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part 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.”}
  • O26 r 10(3)
    • ^{“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.”}
• It appears that the legislative-intent in O26 r 10 canvases for a ‘perfect (or perfected) report’, wherever possible, rather than a report ‘stand corrected by cross examination’. Because, ‘may direct such further inquiry‘ in O26 r 10(3) primarily mandates a further inquiry by the commission itself, wherever possible. Court can appoint a commissioner suo motu, also. (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
• When a Commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report. (See: Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42. The parties should not loose their case for the lapse or mistake of the commissioner.
• But, contra view in Gopala Somayaji C v. R Madhava Pai, 1988(1) Kar LJ 499, where it was held that to disprove the accuracy of the report of Commissioner, it is open to the parties either to cross examine the Commissioner or lead independent evidence instead of calling fresh report in the light of objection raised.
• Note: In practice (because on practicality) the courts proceed on the commission reports ‘stand corrected by cross examination’.

15A. Is it mandatory to examine the commissioner before setting it aside

• The court being exercises when it is ‘satisfied‘ and it is the exercise of discretionary-jurisdiction, it is reasonable to say -it is not mandatory to examine the commissioner before setting aside a commission report.

16. Is the court ‘bound by‘ Commissioner’s report?

• No.
• Subash Soman v. State of Kerala, 2019 -2 Ker HC 700, 2019 -2 Ker LJ 729, it is observed as under:
  • “…. When a commission report and plan are filed in court, as per the direction of the court, the court shall not act merely as a post office and receive it on file. In the light of the provision contained in Order XXVI, Rule 10(3) Code, the court shall go through the report and see whether it is in order, irrespective of whether any objection is filed or not.”
• In Retnamma v. Mehaboob, 2013 -3 Civil CC 65 (Kerala) it is held as under:
  • “57. … When a commission report and plan are filed in court as per the direction of the court, the court shall not act merely as a post office and receive it on file. It is the bounden duty of the court to go through the commission report and consider whether the commission report is satisfactory or not and whether it contains all the relevant details as may be necessary to resolve the dispute. It shall see whether the report is defective or unsatisfactory for any reason or whether any clarification is required in the report.
  • 58. In short, the court shall confirm that commissioner has elucidated all relevant facts which will help the court to take a right decision in the case. In the light of the provision contained in Order 26 Rule 10 (3) C.P.C., the court shall go through the report and see whether it is in Order, irrespective of whether any objection is filed or not. Order 26 Rule 10(3) C.P.C. lays down that where the Court is dissatisfied with the proceedings of the Commissioner, for any reason, it may direct the commissioner to make such further inquiry as it thinks fit.”
• In Amena Bibi Versus Sk. Abdul Haque, AIR 1997 Cal. 59, Calcutta High Court held that the Commissioner’s report even if accepted by itself does not however, mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by examining any other witness to counter the effect of the report.
• The report submitted by the Commissioner is only a piece of evidence (Harihar Misra v. Narhari Setti Sitaramiah, AIR 1966 Ori 121; New Meena Sahkari Awas Samiti Ltd. v. Addl. District Judge, 2016 (6) AWC 5988) which has to be considered along with other evidence on record. (Tulamaya Chettri v. Yonarayan Pradhan, AIR 2004 Sik 39; Mahendranat Parida v. Purnananda Parida, AIR 1988 Ori 248)

17. Should First CR be Set Aside to Issue a Second Commission?

There is difference of opinion.

One view is that the Court Cannot (even) Set Aside a Commission Report, which “shall form part of the record” by virtue of O26 r. 10(2) CPC. There is no provision in the CPC to set aside a Commission Report.

O26 r. 10(3) CPC makes it clear:

• 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.

O26 r. 10(3) does not specifically say –

• (1) the court has the authority to set aside a commission report (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041);
• (2) if the court is dissatisfied with the commission report, it shall set aside the commission report; or
• (3) for issuing a second/fresh commission the first commissioner’s report should have been set aside.

Following arguments can also be placed in support of the view that a commission report cannot be set aside:

• Commissioner’s report is only a piece of evidence (Paul K Lalthakima v. District Collector, Aizawl, 2018-4 GauLT 854; Sarojini v. Karthiyani Amma,  ILR  2010-1Ker 17, 2010-1 KHC 193; Geetarani Panda v. Manmath Patra, 2009-108 Cut LT 355).
• There can be any number of such reports.^#* If two Commission Reports differ on a point, the court can evaluate and assess the same with other evidence and can come to a correct conclusion.
  • ^{#*(No doubt, they cannot be allowed to overfill the court; the restrictive mechanism is provided by the words in O26 r. 10(3) – that is, a second commission can be ordered if only “the court is, for any reason, dissatisfied with the proceedings of the Commissioner” and there is need for a further enquiry.)}
• It is laid down in O 26 r. 10(2) CPC that the commission report shall be evidence in the suit and shall form part of the record (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041). O 26 r. 10(2) reads-
  • “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.”
• Further, O26 r. 14(2), which stands for commission-to-make-partition, engrafts – “after hearing any objections which the parties may make to the report or reports, (court) shall confirm, vary or set aside the same“. But, such a power is conspicuously avoided in O26 r. 10 CPC (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041)

Other View – Court has to Set Aside the 1^st Report for issuing a 2^nd Commission

A bunch of decisions authoritatively lay down that the first commissioner’s report must have been set aside for appointing another commissioner.

The courts brought forth, for that matter-

• Inherent power under Sec. 151 CPC (See: Chinmaya Saha v. Renuka Halder, AIR 2016 Cal 33) and
• Rule of law based on ‘Public Policy’ (See: Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83).
• It is also pointed out that O26 r. 10(3) CPC is attracted (for directing further inquiry, without setting aside first CR) only when there are some deficiencies or omissions in the Report of the Commissioner.

Analysing O26 r. 10(3) CPC it is observed in Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83, as under:

• “The first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy….  the appointment of the second Commissioner and the reports filed by him without setting aside the first Commissioner’s report is wholly illegal and without jurisdiction.”

In Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42, following Swami Premananda Bharathi v. Swami Yogananda Bharathi (and discarding Francis Assissi v. Sr. Breesiya, 2017-1 Ker LT 1041), it is observed as under:

• “If a court is dissatisfied with the proceedings of the commissioner, the court can direct further inquiry to be made as it shall think fit after setting aside the commission report and plan to get the mistakes or the defects rectified.”

Swami Premananda Bharathi, AIR 1985 Ker 83, is referred to in the following decisions also:

• RV Ganesa Naicker v. Painter Selvaraj (Mad), 2018
• Saudagar Mahto v. Ram Charitra Mahto, 2015-2 Pat LJR 52
• Chinmayee Saha v. Renuka Halder, AIR 2016 Cal 33
• KN  Vishwanathan Nair v. K  Rajani, (Kar), 2010
• M Ramesh Babu v. M Sreedhar, 2009-5 ALD 187, 2009-4 ALT 780
• Vemba Gounder v. Pooncholai Gounder, AIR 1996 Mad 347
• Asifunisa v. AH Imam,  1991 BBCJ 513, 1992-1 BLJ 452, 1992-1 Pat LJR 380 (Divergent views placed)

Is it mandatory to set aside the Commission Report – where the report suffered only some “deficiency or omission”?

• No.
• It is to be remitted-back to the commissioner to cure the lacuna. Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42. Followed Joy Cherian v. George Cherian, 2009-3 KerLT 64.

Apparent Legal Position on the First-Principles

As pointed out in Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041, O26 r. 10(3) does not specifically say that the court has the authority to set aside a commission report, which automatically forms part of the record.

A commission report is only a piece of evidence. Therefore, it is definite, on the first-principles, that there is no bar to issue a second commission in a proper case, without setting aside the earlier commission report; but, it can be done only after recording a definite finding that –

• that the earlier Commission Report is not satisfactory and
• that there is need for a further enquiry’

as observed in R. Viswanathan v. P. Shanmugham, 1985-1 MLJ 254. It reads as under:

• “It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under O. 26, R. 10(3). The power can be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express any opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The Court below has opined that the truth or otherwise of the allegations therein against the Commissioner’s report need not be gone into and it is better to change the Commissioner. This is not the proper way of dealing with the matter.”

Effect of Two Commission Reports in File

Assume, rightly or wrongly, two commission reports were brought to file; then, should the first report be discarded totally?

• Since (i) the commission reports are pieces of evidence, (ii) it forms part of evidence and (iii) no express legal provision permits to discard such a report, it may not be proper to totally discard the first report.

18. When a commission report is set aside, is the court bound to remit it back to the Commissioner for getting a fresh report.

• Yes.
• Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42. The reason behind it is obvious – the parties should not be pushed to suffer for the lapse or mistake of the commissioner.
• Court can appoint a commissioner suo motu. (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
• In Retnamma v. Mehaboob, 2013 -3 Civil CC 65 it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection is filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit.

19. Can a commissioner  (for local inspection) examine the parties and/or any witness?

• Yes.
• O 26 r 16 says –
  • _{Any Commissioner appointed under this Order may, unless otherwise directed by the Order 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.}

20. Should the evidence be taken in presence of parties?

• Yes.
• Nand Kishore v. Shiam Sunder Lal, AIR 1938 All.  215; Mehrunnissa Begum v. Begum Nathu Bibi, (1989) 1 MLJ 461 (Parties have to get opportunity of cross-examining witness also.)

21. ‘Ex parte commission’ – can be issued. Should the commissioner give notice to the parties?

• Yes.
• (Maroli Achuthan v. Kunjipathumma, AIR 1968 Ker 28)

22. Ex parte commission did not give notice to the defendant. Can the report be accepted as ‘substantive’ evidence?

• No.
• It can be accepted as a ‘corroborative piece of evidence‘ to the evidence given by the commissioner in court. (Maroli Achuthan v. Kunjipathumma, AIR 1968 Ker 28)
  • ^{Sec. 157 of the Evidence Act reads: “In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”}

23. O 26 r 10(1) says – ‘The Commissioner…  shall return such evidence, together with his report in writing signed by him, to the Court’. Should there be separate ‘evidence’ and ‘report’ (in rule 10(1), pertaining to local inspection)?

• Rule says so.

24. Is the Commissioner in effect is a ‘projection’ of the Court?

• In Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33, it is observed as under:
• “The object of the local investigation under Order 26 Rule 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose.”

25. Is Surveyor-plan Attached to Commission Report ipso facto ‘Evidence’?

• No.
• In Retnamma v. Mehaboob, 2013 -3 Civil CC 65 (Kerala) it is observed by the Kerala High Court that normally, a surveyor’s plan is appended to the report, for explaining the facts contained in the report in a better and easier manner; and therefore, the plan will form part of the report and it can be admitted in evidence (only) as part of report and not independently, as a ‘evidence’. However this decision considered – can a plan prepared by a Surveyor be treated as ‘evidence’, ipso facto.
  • It is answered ‘no’ holding that if the commissioner did not state anything in his report about Surveyor’s plan to vouchsafe correctness of the details of measurement shown in the plan etc., details shown in surveyor’s plan cannot be relied upon by the court.

The Kerala High Court, in Retnamma v. Mehaboob, observed as under:

• (i) Order 26 Rule 10 (2) CPC speaks on ‘Evidence’ (without the report).
• (ii) What is intended to be treated as ‘evidence’ are the facts, which the commissioner has reported in his report about which, commissioner has direct knowledge.
• (iii) The provision contained in Order 26 Rule 10 (2) CPC is not intended to admit ‘hearsay evidence’. (Hearsay is no evidence – Section 60 of Evidence Act.)
• (iv) However, if commissioner reports the correctness of the plan, on the basis of what he had personally observed, the commissioner is competent to give ‘evidence‘, by virtue of Order 26 Rule 10 (2) CPC.
• (v) Mere marking of a document will not tantamount to proof of its execution nor will it prove correctness of the facts stated in the writing contained in the document. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085: 1981-1 SCC 80).
  • Note: When the survey-plan prepared by a survey-commission is not challenged, it appears that in the fact situation of a particular case, it may go in evidence (in spite of its infirmities – including the hearsay rule), on the principles of estoppel and presumption. [It appears that the rule in Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085, applies only in cases where ‘the truth of the facts stated in a document is in issue’.]
• Read Blog: Proof and Truth of Documents

Discrepancy between Pleading and Commission Report; Should plaint be Amended?

In Muttil Rajan v. Kuthirakkal Letha, Kerala High Court (Thomas P. Joseph, J.), 2012, found that the plaint schedule extent (lesser in measurement) has to be accepted. It is held as under:

• “24. It is pointed out by the learned counsel for the appellants that in Exts. C1 and C2, the measurement given for the plaint C schedule is a length of 3 meters and width of 1.10 meters. But in the plaint C schedule, the measurement  given is length of 2.5 meters and width of 3 feet. The learned counsel for the respondents points out that the discrepancy arose in Exts. C1 and C2 only because the Advocate Commissioner has measured the length of the way from the tar end of the public road on the extreme north.
• 25. I must also notice that in Exts.C1 and C2, whatever be the length stated, the Advocate Commissioner has shown that the plaint C schedule starts from the public road on the northern side, goes along the eastern portion of the plaint B schedule and reaches the plaint A schedule. In other words the plaint C schedule as shown by the Advocate Commissioner in Exts.C1 and C2 whatever be its length, has its starting point at the north eastern corner of the plaint A schedule and termini at the public road on the northern side of the plaint B schedule. I must also notice that the decree granted by the trial court and confirmed by the first appellate court is with respect to the plaint C schedule.”