Deceased Advocate Commissioner's Report: Admissibility and Evidentiary Value

In property disputes, boundary issues, or partition suits, courts often appoint an advocate commissioner to inspect sites, prepare reports, and sketches or plans. But what happens if the commissioner passes away before the report can be formally proved in court? A common question arises: Advocate commissioner who prepared report and plan is no more. How can the report and plan be admitted in evidence and what is its evidentiary value?

This scenario raises critical procedural questions under the Code of Civil Procedure (CPC) and Indian Evidence Act. While the death of the commissioner might seem to bar the report's use, Indian courts have established clear pathways for admissibility. This post breaks down the legal principles, key judgments, and practical considerations to guide litigants and lawyers. Note: This is general information based on precedents and not specific legal advice. Consult a qualified advocate for your case.

Admissibility of the Report Despite Commissioner's Death

The death of the advocate commissioner does not automatically invalidate the report. Courts have consistently held that such reports remain admissible under Section 32(2) of the Indian Evidence Act, 1872, which provides an exception for statements made by deceased persons in the course of professional duty or business. Kerala Police Housing & Construction VS M/S. Skypark Builders & Distributors - 2009 0 Supreme(Ker) 627

In a pivotal ruling, the court clarified: the report of the commissioner, even after the death of the commissioner, if relevant, is admissible and can be received in evidence. Section 32 of the Indian Evidence Act carries out an exception in the cases of statements by persons who cannot be called as witness... Subsection (2) of Section 32 which alone is applicable to the present case reads thus: '(2) or is made in course of business -When the statement was made by such person in the ordinary course of business... in the discharge of professional duty...' Kerala Police Housing & Construction VS M/S. Skypark Builders & Distributors - 2009 0 Supreme(Ker) 627

Further emphasizing: When a commissioner is deputed by the court to execute the commission work and the report filed by him, on his death by itself would not render that report inadmissible in evidence. Statements in the report by the commissioner who is dead when the trial of the suit commences are admissible in evidence under Section 32 (2) of the Evidence Act. Kerala Police Housing & Construction VS M/S. Skypark Builders & Distributors - 2009 0 Supreme(Ker) 627

This provision overrides the usual requirement of examining the commissioner as a witness. The report forms part of the suit record under Order XXVI Rule 10(2) CPC, which states: The report of the Commissioner and the evidence taken by him (But not the evidence without the report) shall be evidence in the suit and shall form part of the record... Peedikayullaparambath Chandramathi D/o Kunhikanaran VS P. P. Raveendran S/o Kunhikanaran - 2023 0 Supreme(Ker) 681S. Sundharamurthy VS Kandhasami - 2021 0 Supreme(Mad) 1469

Procedure for Admission

• File the report and plan as part of the record post-filing by the commissioner.
• Invoke Section 32(2) Evidence Act to counter objections based on the commissioner's unavailability.
• No formal exhibition or examination is needed if prepared after notice to parties. Shaik Fathima Bi VS Shaik Nanne Saheb (died) - 2005 0 Supreme(AP) 362

Evidentiary Value of the Report and Plan

Once admitted, the report and annexed plan carry ministerial or expert opinion value, aiding the court but not binding it. Under Order XXVI Rule 10(2) CPC, the report is ipso facto evidence: Once the report is filed by the Advocate Commissioner appointed by the Court, it shall be part of evidence in the suit as per Order 26 Rule 10(2) of C.P.C. S. Sundharamurthy VS Kandhasami - 2021 0 Supreme(Mad) 1469

However, its weight depends on:- Relevancy and direct knowledge: Only facts based on the commissioner's personal observations qualify as evidence. Hearsay or unverified details (e.g., surveyor inputs not vouched by the commissioner) are excluded. Only such facts which can be stated by the commissioner in his report, based on his direct knowledge alone will be 'evidence' under Order 26 Rule 10(2) Civil Procedure Code... The plan will form part of the report and it can be admitted in evidence only as part of report and not independently... Retnamma VS Mehaboob - 2011 0 Supreme(Ker) 1007- Court's discretion: The report is not conclusive; courts assess it alongside other evidence. Non-examination is not fatal, especially without substantial objections: It is no doubt true that when substantial objections are raised to the report of the commissioner, it would be advisable and desirable to examine the Commissioner... But on that ground alone, it cannot be said that the report of the Commissioner cannot be looked into by the Court unless the same is exhibited or the Commissioner is examined. Shaik Fathima Bi VS Shaik Nanne Saheb (died) - 2005 0 Supreme(AP) 362

The plan is admissible only as integral to the report, even if unsigned, provided signed elements (e.g., sketch) exist. Courts may summon for clarification if dissatisfied but won't discard outright. S. Sundharamurthy VS Kandhasami - 2021 0 Supreme(Mad) 1469

Limitations and Exceptions from Case Law

While robust, admissibility and value aren't absolute. Other precedents highlight pitfalls:- Lack of site visit: Reports prepared without physical inspection hold no evidentiary value. For instance, where an official admitted never visiting the site, the report and site plan were discounted. JOHAR SINGH & ORS vs STATE OF PUNJAB & ORS- Ex-parte or improper preparation: If without notice to parties, proof via examination becomes essential (infeasible post-death, impairing weight). Peedikayullaparambath Chandramathi D/o Kunhikanaran VS P. P. Raveendran S/o Kunhikanaran - 2023 0 Supreme(Ker) 681- Encroachment or boundary disputes: Demarcations without full context (e.g., ignoring historical features like a 'Bandh') may lack value, as seen in road disputes where cross-examination revealed gaps. Punnu Ram VS Kashmir Singh - 2016 Supreme(P&H) 2973- Separate suits: Reports from prior suits aren't automatically admissible; certified copies may be used, but witness examination from other proceedings is barred. AMBIKA K A vs ACHUTHAN NAIR - 2012 Supreme(Online)(KER) 46981

In one case, the commissioner was examined (when alive) to clarify the report and plan, reinforcing direct testimony's role. ASSISTANT ENGINEER VS KARUNAKARAN KIDAV - 2013 Supreme(Ker) 835Muthuswami Udayar VS Muthuswami Udayar - 2014 Supreme(Mad) 1131

Courts protect against abuse, like delaying appeals by re-issuing warrants without merit. Muthuswami Udayar VS Muthuswami Udayar - 2014 Supreme(Mad) 1131

Practical Recommendations for Litigants

• File promptly: Ensure the report is placed on record under Order XXVI Rule 10 CPC.
• Anticipate objections: Challenge on merits (inaccuracies, hearsay) rather than death.
• Seek further inquiry: If dissatisfied, request a new commission under Rule 10(3), but the original holds until set aside.
• Corroborate: Bolster with oral evidence, documents, or photos, as commissioner reports are aids, not substitutes. A party can counter it with contrary evidence. Bandi Samuel VS Medida Nageswara Rao - 2016 Supreme(AP) 531

Key Takeaways

| Aspect | Principle | Key Citation ||--------|-----------|--------------|| Admissibility | Sec 32(2) Evidence Act for deceased; auto under Rule 10(2) CPC | Kerala Police Housing & Construction VS M/S. Skypark Builders & Distributors - 2009 0 Supreme(Ker) 627Peedikayullaparambath Chandramathi D/o Kunhikanaran VS P. P. Raveendran S/o Kunhikanaran - 2023 0 Supreme(Ker) 681 || Evidentiary Value | Ministerial aid; direct facts only; court weighs | Retnamma VS Mehaboob - 2011 0 Supreme(Ker) 1007Shaik Fathima Bi VS Shaik Nanne Saheb (died) - 2005 0 Supreme(AP) 362 || Plan | Part of report; not independent | S. Sundharamurthy VS Kandhasami - 2021 0 Supreme(Mad) 1469 || Limitations | Site visit essential; no hearsay | JOHAR SINGH & ORS vs STATE OF PUNJAB & ORS |

In summary, a deceased advocate commissioner's report and plan generally remain admissible and retain evidentiary value as court aids, subject to scrutiny. This balances procedural fairness with practical realities in Indian civil litigation. For tailored guidance, approach your local high court precedents or a civil lawyer.

References (Selected):1. Kerala Police Housing & Construction VS M/S. Skypark Builders & Distributors - 2009 0 Supreme(Ker) 627 - Core on death and Sec 32(2).2. Peedikayullaparambath Chandramathi D/o Kunhikanaran VS P. P. Raveendran S/o Kunhikanaran - 2023 0 Supreme(Ker) 681 - Rule 10 mechanics.3. S. Sundharamurthy VS Kandhasami - 2021 0 Supreme(Mad) 1469 - Plan integration.4. Shaik Fathima Bi VS Shaik Nanne Saheb (died) - 2005 0 Supreme(AP) 362 - Reliance sans examination.5. Retnamma VS Mehaboob - 2011 0 Supreme(Ker) 1007 - Direct knowledge limits.