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Admission of Report and Plan

  • Marking as Exhibit: Report and plan can be filed, marked (e.g., Ext.A5, Ext.P5), and form part of record even from prior proceedings; admitted provisionally but subject to proof. ["2023 0 Supreme(Mad) 3392"] ["2010 Supreme(Online)(KER) 22971"] ["2024 Supreme(Online)(Ker) 80768"] (e.g., Ext.A5 plan was prepared by the commissioner with his report filed in the previous suit; the commissioner has filed Ext.P5 report).
  • Procedure Despite Objections/Defects: Objections filed, considered at trial after evidence; court may direct supplementary report or further directions to same commissioner if alive, but scrapping removes it from evidence. ["2023 0 Supreme(Mad) 3392"] ["2012 Supreme(Online)(KER) 4243"] (e.g., objections to the commission report shall be considered at the stage of trial after recording the evidence; If the Advocate Commissioner's report is defective, the Court can issue further direction).
  • When Commissioner Unavailable: No bar to admission if exhibited; certified copies markable, but requires opportunity to examine commissioner/surveyor for use in proceedings. ["AMBIKA K A vs ACHUTHAN NAIR - Kerala"] ["2010 Supreme(Online)(KER) 22971"] (e.g., unless the certified copy of his report and plan filed therein is also marked ... through him; Even assuming that the report and plan ... had been exhibited in evidence ... by examining the advocate commissioner).

Evidentiary Value

  • General Value: Admissible as evidence supporting case, utilizable by parties; not binding/decisive but has some evidentiary value; scrutinized for correctness, infirmities. ["2023 0 Supreme(Mad) 3392"] ["2010 Supreme(Online)(KER) 22971"] (e.g., The report of the Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence; May be it has got some evidentiary value, but, it cannot be considered as decisive and binding).
  • Subject to Scrutiny: Value assessed post-objections/evidence at trial; diminishes if flawed (e.g., no site visit, unsigned, mismatched plans); corroboration by other reports enhances. ["2012 Supreme(Online)(KER) 4243"] ["AMBIKA K A vs ACHUTHAN NAIR - Kerala"] ["2025 Supreme(Online)(Ker) 25469"] (e.g., its evidentiary value has to be scrutinized, providing opportunity to substantiate the objection; hardly any authenticity or evidentiary value can be attached to the unsigned reports).
  • In Same/Other Suits: Evidence only in suit filed (Order XXVI Rule 10(2)); prior suit dismissal reduces binding force but retains value if re-examined. ["AMBIKA K A vs ACHUTHAN NAIR - Kerala"] ["2010 Supreme(Online)(KER) 22971"] (e.g., A report of the Advocate Commissioner is only evidence in the suit in which it is filed).

Analysis and Conclusion

Report/plan remains admissible as court record/exhibit despite deceased commissioner; prove via certified copies, objections, trial evidence without mandatory examination (implied where unavailable). Evidentiary value is prima facie supportive but not conclusive—depends on scrutiny, corroboration, flaws; low if uncorroborated/unexamined, perferred if matching records. ["2023 0 Supreme(Mad) 3392"] ["2010 Supreme(Online)(KER) 22971"] ["AMBIKA K A vs ACHUTHAN NAIR - Kerala"] ["2012 Supreme(Online)(KER) 4243"] (e.g., The effect of scrapping the Report is that the Report which is evidence ... ceases to be so; evidentiary value ... has to be scrutinized ... at the stage of trial).

Admissibility of Deceased Advocate Commissioner Reports in Indian Civil Litigation

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. 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...' 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. 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... 2023 0 Supreme(Ker) 681 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. 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. 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... 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. 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. 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). 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. 2016 0 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. 2013 0 Supreme(Ker) 835 2014 0 Supreme(Mad) 1131

Courts protect against abuse, like delaying appeals by re-issuing warrants without merit. 2014 0 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. 2016 0 Supreme(AP) 531

Key Takeaways

| Aspect | Principle | Key Citation ||--------|-----------|--------------|| Admissibility | Sec 32(2) Evidence Act for deceased; auto under Rule 10(2) CPC | 2009 0 Supreme(Ker) 627 2023 0 Supreme(Ker) 681 || Evidentiary Value | Ministerial aid; direct facts only; court weighs | 2011 0 Supreme(Ker) 1007 2005 0 Supreme(AP) 362 || Plan | Part of report; not independent | 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. 2009 0 Supreme(Ker) 627 - Core on death and Sec 32(2).2. 2023 0 Supreme(Ker) 681 - Rule 10 mechanics.3. 2021 0 Supreme(Mad) 1469 - Plan integration.4. 2005 0 Supreme(AP) 362 - Reliance sans examination.5. 2011 0 Supreme(Ker) 1007 - Direct knowledge limits.

#AdvocateCommissioner #CPCReport #EvidenceAct
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