The commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties - It is only an opinion or noting

M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit vs Modi Transport Service | 2022 LiveLaw (SC) 471 | CA 1973 of 2022 | 11 May 2022 Coram : Justices Sanjiv Khanna and Bela M. Trivedi Headnotes Code of Civil Procedure, 1908 ; Order XXVI Rule 9,11 - The commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties - It is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. (Para 33) Arbitration Act, 1940 ; Section 21 - The word 'agree' in Section 21 of the Act refers to consensus ad idem between the parties who take a considered decision to forego their right of adjudication before a court where the suit is pending, and mutually agree to have the subject matter of the suit or part thereof adjudicated and decided by an arbitrator. (Para 17) Code of Civil Procedure, 1908 ; Order XXVI Rule 11 - Arbitration Act, 1940 ; Section 21 - Distinction between the scope and functions of an arbitral tribunal and a commissioner - For submission to arbitration, there must be an arbitration agreement or an agreement in terms of Section 21 of the Act that the difference or dispute between the parties for which they intend to be determined in a quasi-judicial manner. Commissioners are appointed by the court. Appointment may be with consent of the parties, or even when there is objection to the appointment. Preexisting agreement or the requirement that the parties agree before the court, as is mandatory in case of arbitration, is not necessary when a court directs appointment of a commissioner. In the case of a reference to a commissioner, all that the parties expect from the commissioner is a valuation/ examination of the subject matter referred, which he would do according to his skill, knowledge and experience, which may be without taking any evidence or hearing argument. (Para 32) Code of Civil Procedure, 1908 ; Order XXVI Rule 11 - We would like to introduce the principle of a 'facilitator' which a court may appoint, be it a commissioner or an expert, for a specific purpose and cause for ascertainment of a fact which may be even disputed. In some cases, the commissioner may even hear the parties and give his expert opinion based on the material or evidence produced by the parties before the commissioner. (Para 32)