Back
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. S. SUBRAMANI
Vemba Gounder
Versus
Pooncholai Gounder
Civil Revision Petition No.2991 of 1995
Decided On : 24-01-1996
Certainly. Here are the key points derived from the provided legal document:
The Court was dissatisfied with the report submitted by the Commissioner and rejected it, leading to the dismissal of the application for appointing a second Commissioner (!) (!) .
The case involved a suit for declaration of title and recovery of possession, where a Commissioner was appointed during pre-trial, and objections were raised to the report filed by the Commissioner (!) .
The Court emphasized that if it is dissatisfied with a Commissioner's report, it has the authority to direct further inquiry but must do so based on a clear finding of dissatisfaction with the previous proceedings or report (!) .
The legal position is that appointing a second Commissioner without the Court passing an order under the relevant procedural rule (O.26 R.10(3)) is improper and contrary to established principles. Such appointment should only occur if the Court is dissatisfied with the previous report, and reasons must be recorded (!) (!) (!) (!) .
Several judicial decisions and authoritative texts agree that the Court cannot issue a second Commission unless it is explicitly dissatisfied with the first report and has recorded reasons for superseding or disregarding it (!) (!) (!) (!) (!) (!) (!) .
The Court noted that in the absence of a specific finding that the previous report is unsatisfactory or faulty, the Court's action to dismiss the application for a second Commission was justified and consistent with legal principles (!) .
The petitioner had the opportunity to examine the Commissioner or present evidence to challenge the report but failed to do so effectively. Merely raising objections without proper steps does not warrant issuance of a second Commission (!) .
The Court clarified that if it finds the report unsatisfactory, it need not insist on a formal application for a second Commission; the Court can directly appoint a second Commissioner or remand the matter for further proceedings (!) .
The Court highlighted that the proper procedure involves the Court first disposing of objections to a report in open Court, and only if the report is found unsatisfactory should a second Commission be issued or the existing one be remitted for correction (!) (!) .
The Court dismissed the revision petition, reaffirmed that the trial Court should follow the correct procedure when dealing with Commissioners' reports, and clarified that the petitioner retains the right to seek appropriate remedies to challenge or set aside the report, provided proper procedural steps are followed (!) .
These points summarize the legal principles and procedural requirements concerning the appointment and evaluation of Commissioners under the relevant rules, emphasizing the necessity of a clear dissatisfaction and proper record before appointing a second Commissioner.
This revision is by the petitioner in I.A. No. 3879 of 1994 in O.S. No. 701 of 1992, on the file of the District Munsifs Court, Tindivanam.
2. The suit is one for declaration of title and recovery of possession of the schedule mentioned property, in which, according to the petitioner/plaintiff, the respondent, defendant has committed trespass. During pre-trial stage, petitioner filed an application for the issue of a Commissioner, and the same was allowed.
3. An Advocate-Commissioner visited the Property. It is said that after expiry of a long time, he filed the report dated 1-11-1993. The petitioner filed objections to the report on 7-1-1994, and the same is pending consideration by the Court below. In the meanwhile, he filed I.A. 3879 of 1994 on 18-11-1994 seeking appointment of another Commissioner. An objection was raised by the respondent stating that when the earlier report is pending consideration, a second Commissioner cannot be deputed and even if there is any defect in the report of the Commissioner, the remedy of the petitioner is only to have a supplementary report by issuing the warrant to the same Commissioner.
4. By the impugned order, Court below dismissed the petition. The said order is challenged in this revision.
5. At the time of admission, notice of motion was ordered and the respondent has also entered appearance.
6. By consent of learned counsel of both parties, the revision itself was heard.
7. Before considering the merits of this case, it is better to know the position of law regarding the issue of Commission, and how far the Court will be justified in issuing a second Commission.
8. Order 26, Rule 10 of the Code of Civil Procedure deals with the procedure for issuance of Commission. it says that the report filed by the Commissioner shall be evidence in the case and that the same shall form part of the records. It further allows the parties to examine the Commissioner personally in open Court, touching the matters regarding which reference is made in the report or in respect of matters referred to him or in respect of those matters which were the subject-matter of investigation. Sub-rule (3) of R.10, O.26, C.P.C. is very important. It reads thus :-
"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." *
9. It is on the basis of sub-rule (3) of Rule 10 to Order 26, C.P.C., objections to the Commissioners report are considered, and the Court has to pass an order as to whether it is satisfied with the proceedings of the Commissioner or not. The question of issuing a second Commission is also based on the satisfaction entered by Court. Is the Court competent to issue a second Commission without passing any order under sub-rule (3) of Rule 10, Order 26, C.P.C. This question has been considered in various decisions of this Court as well as by other High Courts. In one of the earliest decisions of this Court reported in 1922 AIR(Madras) 219 (Thottamma v. C.S. Subramaniyyam), this Court has held thus :-
"The duty of the Court, whenever a Commissioners report is objected to, is to hear objections in open Court and to decide with the aid of such evidence as it might take if the valuation should be varied and in what direction; but if a Commissioner appointed under O. 26, Civil Procedure Code has so totally misconceived his duties as to render his report and valuation useless as a basis for decision, his report should be superseded and a new Commissioner appointed. A report which is once superseded should not be used after its supersession as a basis for valuation. The practice of appointing successive commissioners whenever objections are taken to the reports should be condemned." *
10. In 1929 AIR(Madras) 661 (Ambi v. Kunhikavamma), this Court has held thus (at page 663) ;-
"Civil Procedure Code does not contemplate the issue of a succession of commissions to value improvements all coverin
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
