The court upheld the Trial Court's decision to appoint a new Commissioner due to the incompleteness of the initial report, clarifying that dissatisfaction with a commission report justifies setting it aside.

K.BABU, J.

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O.P (C) No.2020 of 2014

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Dated this the 22^nd day of January, 2025

JUDGMENT

The plaintiff in O.S No.80/2013 is the petitioner. The plaintiff instituted the Original Suit against the defendants for declaration and consequential injunction in respect of the plaint property. The plaintiff filed an application under Order XXVI Rule 9 of the CPC to appoint a Commissioner. The Trial Court issued a commission. The Commissioner filed Ext.P3 report.

2. Defendant No.2 filed I.A No.415/2014 under Order XXVI Rule 10 (3) seeking to set aside the commission report, inter alia contending that the report cannot be accepted as the same was prepared by the Commissioner, who is allegedly a relative of the plaintiff to help him in the proceedings. The Trial Court allowed the application as per Ext.P7 order essentially holding that the commission report is incomplete. The learned Trial Court set aside the report and appointed another Commissioner to conduct local investigation in the plaint property. This order is under challenge in this Original Petition.

3. Heard both sides.

4. The learned counsel for the petitioner contended that the Trial Court ought not to have set aside the commission report. It is submitted that the procedure adopted by the Trial Court appointing a new Commissioner after setting aside the existing report cannot be sustained.

5. The learned counsel for respondent No.1/defendant No.2 submitted that on multiple reasons the Trial Court found that the report was incomplete. The learned counsel for respondent No.1 further submitted that respondent No.1 has no objection in treating the report filed by the Commissioner as a piece of evidence as provided in Order XXVI Rule 10(2) of CPC. However, the learned counsel submitted that the order appointing a fresh Commissioner to conduct further enquiry is not affected with any illegality because the Trial Court has found that the report is incomplete on many aspects. The learned counsel further submitted that if the second report is obtained, it can be treated as a further report as provided in Order XXVI Rule 10(3) of the CPC.

6. The reasons that persuaded the Trial Court in appointing a fresh Commissioner is contained in paragraph 8 of the impugned order, which reads thus:

“8. In order to substantiate the contentions of the plaintiff, he has filed a petition to examine the Commissioner and the Commissioner was examined as court witness. Both sides were permitted to cross examine the Commissioner. It should be noted that the Commissioner has even omitted to file a complete report. There is no continuation to the page No.3. In fact the Commissioner has omitted to include page No.4 in the report. It is seen from the report that the Commissioner has not answer the request No.1 in the work memo. The Commissioner categorically reported that he has not referred any sketch or assignment sketch for measuring the plaint 'A' schedule property. He states that he did not report the borewell which is situated in the plaint 'A' schedule property. The Commissioner deposed that he cannot say anything regarding the lie of the land. Further, he deposed that he cannot say the distance from the plaint 'A' schedule property to the yellow coloured portion shown in Ext.C1(a) plan. The Commissioner categorically deposed that he did not verify the existence of Marpanadka-Badrakudlu SC Colony road. The Commissioner categorically denied that he is a relative of the plaintiff. The Commissioner deposed that the road mark meant by him in the report is actually "the tyre mark". On going through the report of the Commissioner what I finds that the Commission report is incomplete. I find that the objections of the petitioner are sufficient to set aside the Commission report. It is pertinent to note that there is a personal allegation against the Commissioner. It is true that the objections of the plaintiff is only to show that it need only to r