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MADRAS HIGH COURT
Pushpa Sathyanarayana, J.
R.V. Ganesa Naicker —Petitioner
versus
Painter Selvaraj and Anr. —Respondents
Rev.Apln.No.172 of 2014 in S.A.No.1890 of 2002
Decided on 15.3.2018
Counsel for the Parties:
For the Petitioner: Mr. D. Murthi for M/s. K. Bhasker
For the Respondents:Mr. K. Mohanamurali, Advocate
IMPORTANT POINT
Issuance of several commissions and arriving at a decision on the basis of several reports is improper.
Headnote:(A) Civil Procedure Code, 1908—Order 26 Rule 9—Appointment of Advocate Commissioner—Report of Advocate Commissioner will be evidence and same shall form part of records—It is not binding on Court and same does not affect right of parties—It is also open to parties to examine Commissioner in open Court with reference to minutes made in report—Commissioner’s report and evidence bring before Court a set of facts which are subject to same process of evaluation, acceptance or rejection by Court as any other piece of evidence—It is only an instrument which helps in decision making and it is not decision itself—Commissioner appointed is not performing a judicial act but only a ministerial act. (Para 5)
(B) Civil Procedure Code, 1908—Order 26 Rule 10(3)—Appointment of second Advocate Commissioner—While expressing dissatisfaction on first Commissioner’s report, Court is expected to set aside first Commissioner’s report, especially when a fresh commission is issued, as the same would be illegal and would result in jurisdictional error—Issuance of several commissions and arriving at a decision on the basis of several reports is improper—While so, review petition filed on the ground that report of second Commissioner was not adverted to, especially when Counsel who appeared at the time of arguing second appeal is not before this Court, is unacceptable. (Paras 11 and 12)
Result: Review Petition dismissed.
Pushpa Sathyanarayana, J.—The review petition is filed by the plaintiff in the suit, who had come to Court seeking declaration of title and mandatory injunction.
2. The plaintiff claimed title to the suit property by virtue of a sale deed dated 24.09.1963 and claimed to be in possession and enjoyment of the same by paying taxes. As the defendants were trying to encroach upon the property and disturb his possession, the suit in O.S.No.5 of 1996 on the file of the District Munsif-cum-Judicial Magistrate Court, Arcot, came to be filed. The trial court dismissed the suit on 28.04.1999 and on appeal in A.S.No.37 of 1999, the lower appellate court, i.e., the Subordinate Court, Vellore, being the final fact finding Court, confirmed it. In the Second Appeal also, the said concurrent decisions were confirmed by this Court. The review petition is now filed by the plaintiff/appellant contending that an Advocate Commissioner was appointed by this Court vide order dated 11.08.2011, who had filed a report, which was not considered by this Court, while passing the judgment in the instant Second appeal.
3. First of all, it has been well-settled that a review petition can be filed only by the counsel, who appeared for the petitioner/appellant earlier. Change of counsel is deprecated, as the new counsel may not know what transpired between the Court and the counsel, when the matter was argued. The present review petition is one such case, where, the ground on which, the review petition was filed is that pending the Second Appeal, an Advocate Commissioner was appointed to go along with the Surveyor to measure the suit property, correlate the same with Exs.A.2 and A.5 and other documents, that were indicated in the order dated 11.08.2011, and to file a report. It is stated that the Advocate Commissioner so appointed by this Court had executed his warrant and filed a report on 30.11.2011 and the said report had not been adverted to by this Court in the judgement delivered in the second appeal is the complaint made now.
4. Learned counsel for the petitioner/appellant admitted that the report of the second Advocate Commissioner, who was appointed at the second appeal stage, was not brought to the notice of this Court, while making submissions in the instant appeal. Learned counsel for the respondents also affirmed it. Since the appointment of the Commissioner at the second appeal stage was not brought to the knowledge of this Court, this Court had no opportunity to consider the same. Further, the jurisdiction under Section 100 of the Code of Civil Procedure (CPC) cannot be usurped to appoint an Advocate Commissioner at the second appeal stage, when the second appellate court has to deal with only question of law, that is, substantial question of law.
5. No doubt, it is true that the report of the Advocate Commissioner will be evidence and the same shall form part of the records and it is not binding on the Court and the same does not affect the right of parties. It is also open to the parties to examine the Commissioner in open Court with reference to the minutes made in the report. The Commissioner’s report and evidence bring before the Court a set of facts, which are subject to the same process of evaluation, acceptance or rejection by the Court as any other piece of evidence. It is only an instrument, which helps in decision making and it is not the decision itself. A commissioner appointed is not performing a judicial act, but only a ministerial act.
6. Learned counsel for the petitioner drew the attention of this Court to Sub Rule (3) of Rule 10, Order 26 of the CPC, which reads thus :
“10. Procedure of Commissioner.—(1) ....
(2) ....
(3) Commissioner may be examined in person - 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.”
7. It is pointed out that this Court had issued second commission only after recording its dissatisfac
