Court affirms the necessity of examining expert evidence in disputes about commission reports to ensure reliability and admissibility.

JUDGMENT

This original petition is filed challenging Ext.P8 order dated 20.02.2025 in O. S No. 152 of 2024 passed by the Munsiff Court, Ettumanoor rejecting Ext.P6 application filed by the petitioner/ plaintiff to set aside the expert commission report or remit back the same.

2. The petitioner filed Ext.P1 suit for a decree of permanent prohibitory injunction, restraining the respondents from transferring the plaint schedule property and the buildings, effecting construction activities, without paying off the amounts due to him in the matter of construction of the building therein.

3. The respondents filed Ext.P2 interlocutory application seeking appointment of an expert commissioner/ qualified Civil Engineer, to ascertain and report the matters regarding the extent and nature of construction, standard cost of construction, the total cost of construction, etc. The petitioner filed Ext.P3 objection to Ext.P2. Ext.P2 application was allowed.

4. The Advocate Commissioner, with the assistance of an expert Engineer inspected the property and filed Ext.P4 Mahazar and Ext.P5 report.

5. The petitioner filed Ext.P6 application for setting aside Exts.P4 and P5 and remit back the report contending inter alia that the report is vague and unreliable, as it omits the building’s area, item- wise construction details, and wrongly applies 2018 DSR rates instead of those for 2022–2024. The respondents filed Ext.P7 objection to Ext. P6.

6. The learned Munsiff, by Ext.P8 order, dismissed Ext.P6 application stating that the expert has ascertained all the matters and taken every measurement as far as possible and there is no need to remit back or set aside the commission report. Ext.P8 order is challenged by the petitioner contending inter alia that the learned Munsiff, without examining the Advocate Commissioner and the Expert, simply accepted Exts.P4 and P5. It is further contended that the learned Munsiff having found that the questions asked in the commission application and the work memo are not stated in Ext.P5 report, erred in dismissing Ext.P6 application. It is also contended that the Commissioner and the Expert did not take the measurements precisely.

7. Heard Sri.K.S.Hariharaputhran, the learned counsel for the petitioner and Sri.Liji.J.Vadakedom, the learned counsel for the respondents.

8. It is not disputed that the inspection was conducted and the measurements were taken by the Commissioner and the Expert with notice to both parties. Since the report was submitted with notice to the parties, it was not mandatory for the trial court to examine the Advocate Commissioner and the Expert. However, the court has the discretion to examine the Commissioner and the Expert. Order XXVI Rule 10 of the CPC provides that the commission report is ipso facto evidence in the case. When an application is moved to remit the report, the court may examine the Commissioner to arrive at a finding as to whether the report and plan are worth to be taken as evidence in the suit. This Court in Ramakrishnan R.K. v. P.C.Moosa Haji [2024 KHC 375] has held that when a party to the litigation challenges the acceptability of the commission report and plan, it is incumbent upon the court concerned to proceed with the enquiry on that matter by the examination of the Advocate Commissioner and any other person, who assisted him in the preparation of the report and plan and to arrive at a finding as to whether the above records are worth to be taken as evidence in the suit, and part of the case records.

9. In the nature of the commission report, facts and circumstances of the case and the dictum laid down in Ramakrishnan (supra), I am of the vi