Appointing an Advocate Commissioner as Additional Evidence under Order 41 Rule 27 of the CPC

In the complex landscape of civil litigation, the appointment of an Advocate Commissioner is often a vital tool for clarifying disputed facts, particularly regarding property boundaries, encroachment, or current site conditions. While this is common during the trial phase, a critical question arises when a case moves to the appellate level: Can Advocate Commissioner Be Appointed Under Order 41 Rule 27 CPC?

The transition from a trial court to an appellate court changes the procedural dynamics significantly. Generally, an appeal is a review of the existing record, not a venue for starting a new trial. However, the law provides narrow gateways for introducing new evidence if it is essential for justice.

Understanding the Scope of Order 41 Rule 27 CPC

Order 41 Rule 27 of the Code of Civil Procedure (CPC) specifically governs the production of additional evidence in appellate courts. The general rule is that no party is permitted to produce additional evidence in an appellate court unless the court is satisfied that:

1. The trial court refused to admit evidence that ought to have been admitted.
2. The party seeking to produce the evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not be produced at the time the decree appealed against was passed.
3. The appellate court itself requires the evidence to pronounce a proper judgment or for any other substantial cause.

A crucial safeguard exists here: the court cannot simply allow additional evidence on a whim. Whenever such evidence is permitted, the court shall record the reason for its admission 2012 0 Supreme(Cal) 252. A failure to record these reasons suggests a non-application of mind and can lead to the order being set aside 2012 0 Supreme(Cal) 252.

The Intersection of Order 41 and Order 26

While the power to appoint a commissioner for local investigation is primarily found under Order 26 Rules 9 and 10 CPC, this power intersects with Order 41 Rule 27 during an appeal. This is because any report submitted by a commissioner at the appellate stage is treated as additional evidence.

Courts have recognized that appellate courts possess powers similar to trial courts to ensure effective adjudication. However, this is a discretionary power, not a routine right. The evidence must be necessary to fill a lacuna or defect in the record essential for judgment 2001 0 Supreme(HP) 106.

The Mandatory Dual Application Procedure

One of the most common procedural errors in appellate litigation is filing a standalone application for a commissioner. Judicial precedents clarify that the correct procedure requires a dual approach.

According to established rulings, the correct procedure... is when a party who seeks for appointment of an Advocate Commissioner in the appellate stage should file an application under Order 41 Rule 27 CPC as well as an application under Order 26 Rule 9 CPC 2023 0 Supreme(Mad) 3041 and 2023 Supreme(Online)(Mad) 94836.

If a party files only an Order 26 application without invoking Order 41 Rule 27, the application may be viewed as procedurally deficient because it seeks to introduce new evidence into the record without meeting the strict criteria for additional evidence in an appeal 2025 Supreme(Online)(Mad) 59339. However, some courts have taken a more flexible view, suggesting that even if Order 41 Rule 27 is not explicitly mentioned in the application, the request may still come within ambit of provisions of Order 41 Rule 27 if the court finds it necessary

Yasin Gulab Shikalkar VS Maruti Nagnath Aware

When is an Appointment Likely to be Granted?

The appellate court will typically only appoint an Advocate Commissioner in exceptional circumstances where the evidence is indispensable. Examples include:

• Clarifying Site Conditions: Where a site inspection is necessary to elucidate disputes, such as determining the exact nature of an encroachment 2025 Supreme(Online)(Ker) 45333.
• Resolving Conflicting Reports: When previous commissioner reports are contradictory, warranting a fresh joint measurement to find the truth 2023 0 Supreme(Bom) 103.
• Necessity for Justice: In specific disputes, such as those involving Wakf property, where the inspection is deemed essential for a fair trial 2004 0 Supreme(P&H) 457.

Limitations and Common Pitfalls

Seeking a commissioner in the appellate stage is fraught with risks if not handled with diligence.

The Requirement of Due Diligence

Parties cannot use the appellate stage to correct their own negligence during the trial. Due diligence is a mandatory prerequisite 2015 Supreme(Online)(KER) 35003. If a party had the opportunity to request a commissioner during the trial but failed to do so, the appellate court will generally reject the request as an afterthought.

Prohibition Against Creating New Evidence

An Advocate Commissioner is appointed to elucidate existing disputes, not to create new evidence or decide the case 2024 0 Supreme(Jhk) 360. They serve as the eyes of the court, not as judges of the facts.

Consequences of Abuse of Process

Courts view late or unjustified applications as an abuse of the judicial process. In some instances, heavy costs—potentially up to Rs. 5 lakhs—have been imposed on parties attempting to delay proceedings through such applications 2024 Supreme(Online)(Bom) 6870.

Jurisdictional Limits

It is also important to note that certain forums have limited powers. For example, Consumer Forums have been held to have no power to appoint commissioners under Order 26 Rule 9 2009 0 Supreme(AP) 34.

Summary of the Process for Seeking Appointment

For those navigating this procedure, the following steps are typically required:

1. Concurrent Filing: Submit petitions under both Order 41 Rule 27 (for the right to produce additional evidence) and Order 26 Rule 9/10 (for the actual appointment).
2. Evidentiary Support: Provide an affidavit demonstrating the due diligence exercised and explaining exactly why the evidence was not produced during the trial.
3. Court's Satisfaction: The court must be satisfied that the report is necessary for a proper judgment and must record the reasons for this satisfaction.
4. Verification: Once the report is filed, parties may be permitted to summon the commissioner for cross-examination under Order 26 Rule 10(2) to ensure the report's accuracy

   Nusli N. Wadia VS Bastion Constructions

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Key Takeaways

| Requirement | Legal Standard || :--- | :--- || Possibility | Possible, but conditionally under Order 41 Rule 27 + Order 26 2023 0 Supreme(Mad) 3041 || Mandatory Action | Court must record reasons for admission; otherwise, the order may be vitiated 2012 0 Supreme(Cal) 252 || Procedural Path | Dual applications; proof of due diligence required || Judicial Nature | Discretionary; used to fill essential lacunae, not for routine requests 2001 0 Supreme(HP) 106 || Risk | Dismissal with heavy costs if viewed as a delay tactic 2024 Supreme(Online)(Bom) 6870 |

In conclusion, while appellate courts may appoint Advocate Commissioners under Order 41 Rule 27 CPC, this is an exception rather than the rule. The process is designed to prevent fishing expeditions and ensure that appeals do not become second trials. As legal outcomes depend heavily on specific facts, this information should be used for general understanding, and professional legal counsel should be sought for case-specific strategies.