Evidentary value of court commissioner report
Querist :
Anonymous
(Querist) 08 March 2020
This query is : Resolved
Sir,
i am for Plaintiff and filed the suit for Perpetual Injunction. while the proceedings of the case court appointed the court Commissioner for inspection of the Suit Spot. the report of the commissioner states about non-suit property and regarding suit property report stated that Plaintiff was absent and his Advocate did not shown the Suit property. Now whether it effect on Plaintiff case ?
Raj Kumar Makkad
(Expert) 08 March 2020
On whose application the court commissioner was appointed?
Advocate Suneel Moudgil
(Expert) 10 March 2020
The report of Local Commissioner is part and parcel of the Court record and is a nadmissible piece of evidence.
P. Venu
(Expert) 10 March 2020
The facts posted are not wholesome and also, lacks clarity.
Rajendra K Goyal
(Expert) 12 March 2020
Full Case file has to be referred for proper advice. No view can be expressed with the given facts.
T. Kalaiselvan, Advocate
(Expert) 21 March 2020
If the report of the advocate commissioner is not complete or not satisfactory then an application may be filed by the petitioner for re-commission to inspect and submit the report of the suit property along the lines of instructions/orders passed by the court in this connection.
The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. 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.
T. Kalaiselvan, Advocate
(Expert) 21 March 2020
In Sarala Jain and others.Vs. Sangu Gangadhar, in view of the law laid down by the Apex Court in Mohd. Mehtab Khan’s case,( 2013 (3) ALD 64 (SC)), His Lordship M.Satyanarayana Murthy, J, held that 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.
If we keep these principles in mind while dealing with an application for appointment of advocate commissioner in a suit, we can easily find out whether allowing such application becomes pre-trial decree or not.
Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession:-
In K.M.A.Wahab & others vs. Eswaran & another, reported in 2008 (3) CTC 597, His Lordship, A.Kulasekaran, J, has held that appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and on appreciation of evidence.
T. Kalaiselvan, Advocate
(Expert) 21 March 2020
Material issue of determining the possession cannot be left to an Advocate-Commissioner.
In Chandrasekharan vs. Doss Naidu, reported in 2005 (3) MLJ 473, Her Lordship R.Banumathi, J has held that though appointment of Advocate-Commissioner was sought for under the pretext of noting down the physical features, indirectly it was only to find out the factum of possession. As the material issue involved in the suit relating to the nature of possession and lawful right of the parties, it was held that the material issue of determining the possession cannot be left to an Advocate-Commissioner.
Advocate-Commissioner should not be appointed to gather evidence to prove the case of parties:-
In Krishnamurthy, T.K vs. Tamil Nadu Water and Drainage Board, reported in 2006 (5) CTC 178, His Lordship S.Rajeswaran, J has held that Advocate-Commissioner should not be appointed to gather evidence to prove the case of parties, since the parties should prove their case by letting in legally acceptable evidence and the report of the Commissioner can only aid the Court in evaluating the evidence to come to just conclusion.
Advocate Commissioner cannot be used for fact finding purposes and as such, the order passed by the Court below is not sustainable under law.
Rajendra K Goyal
(Expert) 21 March 2020
Expert Advocate T. Kalaiselvan has guided properly, may proceed accordingly.
