THE LAW ON APPOINTMENT OF ADVOCATE–COMMISSIONER IN SUITS

 Author Y.Srinivasa Rao Judge

Introductory:
The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. To answer this question, we have to understand the expression of “elucidating any matter in dispute” in Order 26, Rule 9 of CPC. There are thousands of case-law as to this issue. In my 11 years of experience as a judicial officer, I hear that some are under the impression that no advocate-commissioner is to be appointed in suit for injunction. For example, the claim for injunction made by the plaintiff is based on the plea that there is only one way to his house and that he is being prevented by the defendant from using the said way. Any amount of evidence in this regard may not help the Court to render a correct finding on this aspect. So, a situation such as this would definitely fall within the expression of “elucidating any matter in dispute. Similarly, there are several issues regarding appointment of advocate-commissioner. Therefore, I believe that this article would be of special value to the junior lawyers, and law student who wish to specialize on the civil side. And this article may also be useful to the Bench and the Bar.

Appointment of Commissioner in terms of part III i.e. matter “Incidental proceedings” of CPC is a provided by section 75 of the Code. Inasmuch as this article is concerned with the appointment of Commissioner section 75 of CPC being the provision relevant, empowering the court, it would be apposite to refer the provisions.
” 75. Power of court to issue commissions. – Subject to such conditions and limitations as may be prescribed, the court may issue a commission –
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold la scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay
and which is in the custody of the Court pending the determination of the
suit;
(g) to perform any ministerial act.”
As per Section 75(b), subject to such conditions and limitations as may be prescribed the Court may issue commission to make a local investigation. With this, section 75 it would be appropriate now to refer Order XXVI Rule 9 of CPC. Sub-title of Order 26 of CPC makes a reference to “Commissions to examine the witnesses”. Rule 9 of Order XXVI provides “Commissioner for local investigation.” (See: The Hon’ble Bombay High Court ruling in Registered Office At Mukundraj vs Ramkrushna Dhondiram, WRIT PETITION NO.4974 OF 2008, dt. 7.10.2008)

Some times, it becomes pre-trial decree:-

In Sarala Jain and others.Vs. Sangu Gangadhar, in view of the law laid down by the Apex Court in Mohd. Mehtab Khan’s case,( 2013 (3) ALD 64 (SC)), His Lordship M.Satyanarayana Murthy, J, held that appointing advocate commissioner by the trial Court for the purpose of demarcating schedule property and fix boundary stones to the property of the respondents amounts to granting pre-trial decree as it satisfied part of the reliefs claimed in the suit. In such case, commissioner cannot be appointed for the said purpose. Further, it was held in this case that to appoint an advocate commissioner, Court has to keep in mind the following:
(1) Total pleadings of both parties;
(2) Relief claimed in suit;
(3) Appointment of advocate commissioner for specific purpose at interlocutory stage shall not amount to grant pre-trial decree; and (4) Necessity to appoint advocate commissioner to decide real controversy between parties.
If we keep these principles in mind while dealing with an application for appointment of advocate commissioner in a suit, we can easily find out whether allowing such application becomes pre-trial decree or not.

Appointment of Commissioner in a suit for injunction:-
In 2014, the Hon’ble Andhra Pradesh High Court, in K.Dayanand And Another vs P. Sampath Kumar, after considering the dicta observed in the rulings reported in 2009 (2) ALD 238; 2012 (3) ALD 384; 2011 (2) ALD 472; 2006 (4) ALD 675; 2005 (6) ALD 389; 2011 (4) ALD 231; (2009) 12 SCC 773; 1997 (1) A.P.L.J. 61 (SN); 2010 (4) ALD 198; 2008 AIR SCW 6500; (2008) 8 SCC 671 and 2013 (1) ALT 548, it was held that there is no absolute bar on appointment of Commissioner in a suit for injunction also as per the law laid down in the above referred judgments nor the provisions of Section 75 and Order XXVI Rule 9 do impose such a prohibition.

It is not the business of the Court to collect evidence in favour of one party:-
In Padam Sen and another vs. The State of U.P., AIR 1961 SC 218, three Judge Bench of the Hon’ble Supreme Court has held that Court has no inherent power under Section 151 to appoint an Advocate-Commissioner to seize account books in the possession of the plaintiff, upon an application by the defendant that he has apprehension that they would be tampered with. The Hon’ble Apex Court further held that the Court cannot seize them forcibly by appointing an Advocate-Commissioner, but it can summon them and if not produced, it can penalise the party and also draw adverse presumption against him. If the documents are forged, while in the possession of the plaintiff, the defendant can prove the forgeries and dispute the entries. The Hon’ble Supreme Court has categorically ruled that it is not the business of the Court to collect evidence in favour of one party.

Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession:-
In K.M.A.Wahab & others vs. Eswaran & another, reported in 2008 (3) CTC 597, His Lordship, A.Kulasekaran, J, has held that appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and on appreciation of evidence. Similarly, in another case, M/s. Benz Automobiles Private Limited vs. Mohanasundaram, reported in 2003 (3) MLJ 391, His Lordship AR.Ramalingam,J, has held that Advocate-Commissioner cannot be appointed to find out the factum, as to who is in possession of the property. Even if an Advocate-Commissioner is appointed and his report is filed, it can be questioned by the other side by filing objections, as the dispute in the suit could be resolved only on the basis of oral and documentary evidence let in by the parties.
In Rajendran vs. Lilly Ammal alias Nelli Ammal, reported in 1998 (II) CTC 163, His Lordship S.Jagadeesan, J, has held that Advocate-Commissioner cannot be appointed to find out the fact as to who is in possession of suit property in a case. In another case, in Kuttiyappan, D. vs. Meenakshiammal Polytechnic Unit of M/s. Meenakshiammal Trust, reported in 2005 (4) CTC 676, Her Lordship R.Banumathi, J held that the defendants therein were not entitled to seek for appointment of Advocate-Commissioner to note their possession, as it is well settled that Commissioner cannot be appointed for noting down the factum of possession or the enjoyment of property. Similar issue was considered in another case, in Minor Amid Stanly & another vs. Lakshmiammal & others,s reported in CDJ 2009 MHC 324, His Lordship S.Palanivelu, J, has held that the factum of possession cannot be ascertained by Commissioner, as the same could be proved by letting in oral and documentary evidence by the parties before the Court.

However, in T.S. Ramu vs. Neelakandan, reported in 2004 (2) CTC 674, His Lordship S.Sardar Zackria Hussain, J, has held that appointment of Advocate-Commissioner to find out the actual area under the occupation of the tenant and to file report is legally maintainable under Section 18 (A) of the Act. However, in the instant case, the purpose for seeking appointment of Commissioner is different.

Material issue of determining the possession cannot be left to an Advocate-Commissioner.

In Chandrasekharan vs. Doss Naidu, reported in 2005 (3) MLJ 473, Her Lordship R.Banumathi, J has held that though appointment of Advocate-Commissioner was sought for under the pretext of noting down the physical features, indirectly it was only to find out the factum of possession. As the material issue involved in the suit relating to the nature of possession and lawful right of the parties, it was held that the material issue of determining the possession cannot be left to an Advocate-Commissioner.

Advocate-Commissioner should not be appointed to gather evidence to prove the case of parties:-

In Krishnamurthy, T.K vs. Tamil Nadu Water and Drainage Board, reported in 2006 (5) CTC 178, His Lordship S.Rajeswaran, J has held that Advocate-Commissioner should not be appointed to gather evidence to prove the case of parties, since the parties should prove their case by letting in legally acceptable evidence and the report of the Commissioner can only aid the Court in evaluating the evidence to come to just conclusion.

Advocate Commissioner cannot be used for fact finding purposes and as such, the order passed by the Court below is not sustainable under law:-

In Devadoss vs. A.Duraisingh, reported in 2002 (3) CTC 748, His Lordship A.Ramamurthy, J, has held that Advocate Commissioner cannot be used for fact finding purposes and as such, the order passed by the Court below is not sustainable under law. It is always open to the decree-holder to examine the concerned persons as witnesses and prove as to how and in what manner they got the cable connection relating to the suit

If no prompt actions are taken to appoint an advocate-commissioner, it may destroy the valuable rights of the parties:

In M.P. Appulu vs. A. Fatima Zohra & another, reported in 1982 (2) MLJ 340, His Lordship T.Sathiadev, J, has held that “There are circumstances in which, it is only a Commissioner inspecting the property promptly and recording timely assessment of what obtains relating to the building, could alone assist courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable rights of the parties. It may so happen, when a landlord high-handedly starts pulling down a portion of the main building, the tenant would be greatly interested in securing a Commissioner appointed forthwith. If the right of tenant to have access to stair-case is obstructed, he is most interested in seeking appointment of Commissioner and secure immediate relief, for restoring amenities, which is assured to him under Section 17 of the Act.” His Lordship T.Sathiadev, J, while interpreting Section 18 (A) of the Act held that if application for appointment of Commissioner is not properly understood and appreciated and resulted in dismissal of the application; to hold that an appeal would not lie, which would result in taking away the affected party’s right, which is enshrined in the Act itself.

Advocate Commissioner is an officer of the Court:-
In para 118, in 2014, the Hon’ble High Court in M.Gurumoorthy And Others vs C.Kamalamma And Others, A.S.M.P.No.1898 of 2012 and batch, dt.22-04-2014, observed as follows:”…This indicates that the Advocate Commissioners report Ex.A.21 is factually incorrect and is a false report prepared by her to help the Defendants to play fraud on the court and help them to get a final decree behind the back of the plaintiffs. It is unfortunate that even the Advocate Commissioner appointed by the trial court, who is supposed to be an officer of the Court, acted in this manner.”

Appointment of advocate-commissioner for the second time:

    In S. Rukman Naik vs P. Anjani Prabha And Anr, 2004 (4) ALD 876, an interesting question was come for consideration. While the said report is pending consideration, is it proper on the part of this Court to appoint Advocate-Commissioner for the second time for inspecting the site and submitting his report in respect of which the Advocate Commissioner appointed on the first occasion had submitted his report? To answer, the Hon’ble Andhra Pradesh High Court held that in para 21 as follows: ”In view of the foregoing facts and circumstances, the Division Bench has taken note of the status quo order passed by this Court in S.A.14 of 2002 when CA.No. 113 of 2004 was filed by the petitioner in the contempt case to appoint Advocate-Commissioner and re-entrust the warrant to Ms. W.V.S. Rajeswari, who was earlier appointed as Advocate-Commissioner to note down the physical features. Without passing any order on the report of first Advocate-Commissioner, this Court ought not to have considered CA No. 113 of 2004 for re-entrusting the warrant to Ms. W.V.S. Rajeswari, Therefore, the order passed in CA No. 113 of 2004 is not in consonance with Order 26, Rule 10(3) of the Code of Civil Procedure but also against the order passed by the Division Bench in a batch of CRPs filed by the petitioner.”
As to appointment of a second Advocate Commissioner, In Pamula Narsaiah And Anr. vs Pamula Murali And Ors, citations: 2002 (1) ALD 393, 2001 (6) ALT 385, it was observed as follows: ”Therefore, I hold that under Sub-rule (3) of Rule 14 of Order 26, the Court below has no power to reopen or review its own order when it has confirmed and passed a final decree on the basis of the Advocate-Commissioner’s report. If the parties are so aggrieved, they can assail the correctness or otherwise of the order by approaching the appellate Court. If once the Court below has confirmed and passed a final decree on the basis of the Advocate-Commissioner’s report, it has no power to vary or set aside the Advocate-Commissioner and appoint a second Commissioner.”
Chokkalingapuram Thevangar Vardhaga Sangam, West Car Street, Chokkalingapuram, Aruppukottai Taluk, through its President v. Chokkanathaswami Temple, Chokkalingapuram, Aruppukottai Town, represented by its Executive Officer reported in 1996(I) M.L.J. 254, in which, this Court has held thus:- “Civil Procedure Code (V of 1908) Order 26, Rule 10(3). Commissioner appointed and report submitted by him. Mere lapse in report, cannot be ground for appointment of second commissioner. Commissioner’s report, is not per se evidence. Court has discretion to appoint second commissioner depending on facts and circumstances of the case before it. (See also: Kitnammal vs Nallaselvan And Ors, (2005) 2 MLJ 227).

Evidentiary value of Advocate-Commissioner’s report:-

A party can countermand the evidence of Commissioner’s report by letting in other evidence. A Local Commissioner can only report on existing facts and not how they came about, as per decision of Hon’ble Supreme Court in Lekh Raj V. Muni Lal and others, (2001) 2 Supreme Court Cases 762.
As was held in 2013, in Selvi vs Dorathy Paul, C.R.P. PD. No. 1669/2011,in law, the evidence of an Advocate Commissioner is not binding on Court and in fact, his report is to be appreciated along with other evidence available on record in a given case. In K. Viswanathan v. D. Shanmugham Mudaliar and Anr. reported in 1986(I) M.L.J. 319, held that under Order 26, Rule 10(2), C.P.C. the report of the Commissioner is evidence in the suit and forms part of the records. In Veppanathar alias Karuppannam and Anr v. Laiappan reported in 2000-I Law Weekly 893, in which, the Hon’ble Madras High Court has held thus:- “Under Order 26, Rule 10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting aside the report, the Court can direct the Commissioner to rectify the defect or deficiency, taking into consideration the objections and evidence let in, in that behalf and to file a supplementary report. As far as possible, Commissioner, who has already visited the property should be directed to file a supplementary report and only if that is not possible, the report could be scrapped.

Introducing additional evidence – When?

In a decision reported in Penta Urmila and others vs. Karukola Kumarasamy, (2005 (2) ALD 130), the Court in paragraph 6 has held as follows: 6. In a suit for permanent injunction, the vital and important issue is whether the plaintiffs are in possession of the suit schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs. The burden is entirely on the plaintiffs to bring convincing and cogent evidence on record and for so doing, it is not permissible for them to invoke Order XXVI Rule 9, which is intended for difference purpose. Further, if at this stage, Advocate Commissioner files a report, as directed by Appellate Court with the assistance of the Mandal Surveyor it would certainly amount to introducing additional evidence which is ordinarily not permissible unless proper application is made under Order XLI Rule 27 satisfying the conditions therein.

Local inspection by advocate-commissioner:-
In 2013, the Hon’ble High Court of Andhra Pradesh, after referring to the dicta in Pormusamy Pandaram vs The Salem Vaiyappamalai Jangamar, AIR 1986 Mad 33, and the dicta observed in the rulings reported in 2006 ALD 675; 2001(4) CCC 416 (Bom); AIR 1986 Madras 33; AIR 1988 Orissa 248; AIR 1959 AP 170 = 1958 ALT 792 and 1988 (1) ALT 353 and observing the object of local investigation under 0. XXVI, R. 9 of the Code which cannot be littled, in Bandaru Mutyalu And Another vs Palli Appalaraju, C.R.P No.5525 of 2011, dt. 01-07-2013, it was held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared.

The Hon’ble Andhra Pradesh High Court in the case between Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others, 2010 (4) ALD 198, wherein, it was held that an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit site and to demarcate the suit schedule property with the help of the Surveyor.
In R.V.Ramalingam vs. Abdul Muthaliff, reported in CDJ 1992 MHC 087, His Lordship AR.Lakshmanan, J, has held that on the ground that the tenant has substantially damaged the back portion of the building and is also attempting to unauthorisedly put up some construction and in view of the attitude of the tenant, it was found necessary to appoint an Advocate-Commissioner to make a local inspection of the building and to note down the physical features of the building and the structure thereon and submit a report to the Court with plan and accordingly, the application was found to be maintainable under Section 18 (A) of the Act

The Andhra Pradesh High Court in Podugu Appa Rao (died) & others vs. Grandhi Sathiraju (died) and others, reported in CDJ 2008 APHC 1132, held that the Advocate-Commissioner appointed to find out whether the tenant had committing any act of waste, affecting the value and utility of the building, as sustainable under law.
Further, the Hon’ble Andhra Pradesh High Court in the case between Mallikarjuna Srinivasa Gupta Vs. K.Sheshirekha, 2006 (3) ALD 362 in which case, a suit was filed for declaration of title and an application was filed contending that the defendant therein encroached a portion of the site. The stand of the defendant therein was that he has not encroached any portion of the site as alleged by the plaintiff. In the circumstances, this Court held as follows:-
“By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein.”

In 2011, the Hon’ble Andhra Pradesh High Court in Shaik Zareena Kasam vs. Patan Sadab Khan and others, C.R.P. No.3266 of 2007 ,dt. 01-04-2011 observing the dicta in the rulings reffered to 2006 (3) ALD 362 (supra ) and 2010 (4) ALD 198 (supra), directed the lower court to appoint an Advocate Commissioner observing that if there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs,

For the purpose of taking measurement of the suit land:-

The Hon’ble Supreme Court in Gurunath Manohar Pavaskar & others vs. Nagesh Siddappa Navalgund and others, reported in CDJ 2007 SC 1339, has held that the learned trial Judge may appoint an Advocate-Commissioner for the purpose of taking measurement of the suit land. See also:- M. Vedapuri vs. O.M.Raj and another, reported in CDJ 2008 MHC 4400; Teraj Sarammal vs. Bajranglal Daman, CDJ 2004 MHC 947.

The Court has discretionary power to appoint Commissioner :-

In A.Nagarajan vs. A.Madhanakumar, reported in CDJ 1996 MHC 497, His Lordship Shivappa, J held that for the purpose of elucidating facts in respect of any matter in dispute where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, certain facts, to make it clear, intelligible and to throw light upon the matter in issue, relating to the main case as well as the facts leading to the dispute.

Whether the Execution Court has power to appoint an Advocate-Commissioner?

In 2015, Gurram Anantha Reddy vs Katla Sayanna, in C.R.P. No.2982 of 2014 and batch,Dt. 30-03-2015, it was held as infra: ”The contention that in Execution Proceedings, Commissioner cannot be appointed and the E.P. Court has no power to appoint Commissioner under Order 26 Rule 9 of the Code of Civil Procedure has absolutely no merit in view of the reason that as per Order 26 Rule 18-A of the Code of Civil Procedure, the provisions of Order 26 of Code of Civil Procedure are applicable to the proceedings in execution of a decree or order also.”

Conclusion:-
According to Section 75 and Order XXVI of C.P.C., Court has discretion to appoint a commissioner but the discretion has to be exercised in a judicious and sound manner and not whimsically. Before appointing commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. As was held in Shaik Zareena Kasam vs. Patan Sadab Khan and others, C.R.P. No.3266 of 2007 ,dt. 01-04-2011, it is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties.
When an application for appointment of advocate commissioner is filed, such application must be decided without any delay. As was held in P. Pedda Saidaiah And Ors. vs T. Padmavathi,1997 (5) ALT 818, it is the duty of the Court to dispose of the interlocutory applications filed by the parties during the pendency of the suit within a reasonable time. Where in a suit for possession, the purpose of appointment of a Commissioner was to collect evidence the rejection for appointment of Commissioner is a proper one, as opined by the Hon’ble Madras High Court in Raja vs Narashimamurthy (2011), C.R.P.PD.No.3163 of 2009,dt.01.08.2011. It is well-settled that if the oral and documentary evidence are found enough to resolve the controversies in the suit, the rejection of application for appointment of a Commissioner is a valid one. It is provided under Order XXVI Rule 9 of CPC that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

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