Answer: Yes; According to the Law Now Outstands.

• But, the Apparent Legal Position, on the First-Principles, is the following-
• There is no bar to issue a second commission (without setting aside the earlier report) if it is found –
  • (i) the earlier Report was not satisfactory and
  • (ii) there is need for a further enquiry.
• Because,
  • O26 r 10 (3) expressly allows the Court, to direct such further inquiry as it thinks fit, if it is dissatisfied with the proceedings of the Commissioner, for any reason;
  • Commission report is only a piece of evidence, and the court is not ‘bound by’ it.

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

• 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.
• 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.

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 can 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).

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 –

• the earlier Commission Report was not satisfactory and
• 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.

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.

Parties should not be pushed to suffer for the Mistake of the Commissioner

• In Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42, it is held as under:
• “21. In a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for fresh report by deputing another commissioner.”

It is beyond doubt that above observation is made on the principle that the parties should not be pushed to suffer for the lapse or mistake of the commissioner. We can take cue from the proposition that ‘a party should not be pushed to suffer a wrong occasioned by the inaction or fault on the part of the Court’. See :

• (i) Jang Sing v. Brij Lal, AIR 1966 SC 1631;
• (ii) A.R. Antulay v. R.S. Naik, 1988-2 SCC 602;
• (iii) Mudit Verma v. Co-operative Tribunal, 2006 (63) ALR 208 (All)(LB)

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 –
• 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.