An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute.
Appointment of Commissioner in terms of part III i.e. matter “Incidental proceedings” of CPC is a provided by section 75 of the Code.
appointing advocate commissioner by the trial Court for the purpose of demarcating schedule property and fix boundary stones to the property of the respondents amounts to granting pre-trial decree as it satisfied part of the reliefs claimed in the suit. In such case, commissioner cannot be appointed for the said purpose. Further, it was held in this case that to appoint an advocate commissioner, Court has to keep in mind the following:
(1) Total pleadings of both parties;
(2) Relief claimed in suit;
(3) Appointment of advocate commissioner for specific purpose at interlocutory stage shall not amount to grant pre-trial decree; and (4) Necessity to appoint advocate commissioner to decide real controversy between parties.
Hon’ble Madras High Court has held thus:- “Under Order 26, Rule 10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting aside the report, the Court can direct the Commissioner to rectify the defect or deficiency, taking into consideration the objections and evidence let in, in that behalf and to file a supplementary report. As far as possible, Commissioner, who has already visited the property should be directed to file a supplementary report and only if that is not possible, the report could be scrapped.
