Can the Court issue a Second Commission without Setting Aside First Commission Report?

Answer: Yes.

Saji Koduvath, Advocate, Kottayam.

Part I

Apparent Legal Position

  • There is no bar to issue a second commission (without setting aside the earlier report) if it is found –
    • (i) the earlier Report was not satisfactory and
    • (ii) there is need for a further enquiry.
  • Because,
    • O26 r 10 (3) expressly allows the Court, to direct such further inquiry as it thinks fit, if it is dissatisfied with the proceedings of the Commissioner, for any reason;
    • Commission report is only a piece of evidence, and the court is not ‘bound by’ it.

Division Bench Affirmed – Earlier Commission Report Need Not be Set Aside

Two Division Bench decisions of the Kerala High Court affirmed – it is open for the court to appoint a fresh commission, without setting aside the earlier commission report.

  • 1. Laly Joseph @ Laly Sebastian v. K.U. Francis, 2023-3 KerHC 678; 2023-2 KerLT 516 (A. Muhamed Mustaque, Shoba Annamma Eapen, JJ.) and
  • 2. Sreedevi v. State of Kerala, 2024 (2) KLT 645 (DB)

In Laly Joseph v. K.U. Francis, 2023-3 KerHC 678; 2023-2 KerLT 516 (DB), held as under:

  • “There is no embargo, according to us, for setting aside a commission report if the court is totally dissatisfied with the commission report. It is also open for the court to remit the commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report. The court can very well appreciate both reports and decide accordingly at the time of the trial. We find a similar view has been taken by the learned Single Judge in
    • K.L.D. & M.M. Board Ltd. v. Achuthan, 2001(2) KLT 440, and
    • Joy Cherian v. George Cherian, 2009 (2) KHC 969.
  • The power given to the court to ‘conduct further enquiry’ on being ‘dissatisfied’ with the report can be exercised in such manner as the court may choose to do so for any cogent reasons.”

In Sreedevi v. State of Kerala, 2024 (2) KLT 645 (DB), following Laly Joseph @ Laly Sebastian v. K. U. Francis, 2023-3 KerHC 678; 2023-2 KerLT 516 (DB) held as under:

  • “Of course, it is true that as per Order XXVI Rule 10(3) of the Code of Civil Procedure, 1908, the Tribunal is expected to remit back the commission report and order further enquiry, if only it is dissatisfied with the proceedings of the Commissioner. However, when a party requests for further enquiry on the basis of the new aspects brought out in the pleadings by way of amendment, and seeks to have a commission report on the matters related to such new aspects which are relevant for the just disposal of the case, the court is expected to allow such application even though the commission report which is already on record does not contain anything objectionable for the court to be dissatisfied.”

The Earlier (Seemingly Erroneous) Views

  • 1. A commission report cannot be set aside under rule 10 of Order XXVI of the Code of Civil Procedure. (It can be done only under sub-rule (2) of R.14 of Order XXVI – in the matter of partition)
    • Francis Assissi v. Sr. Breesiya, 2017 KHC 15,
    • Gopalakrishnan v. V. Ponnappan, 2021 (5) KHC 548 : 2021 (5) KLT 751.
  • 2. The first commissioner’s report and proceedings should be set aside for reasons to be recorded, and then only the court can proceed to appoint another commissioner to do the work.
  • Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83. It is held in this decision:
    • “The first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy….  the appointment of the second Commissioner and the reports filed by him without setting aside the first Commissioner’s report is wholly illegal and without jurisdiction.”
  • Yudathadevus v. Joseph, 2021 (5) KHC 668: 2021 (6) KLT SN 36. It is held in this decision:
    • “If a court is dissatisfied with the proceedings of the commissioner, the court can direct further inquiry to be made as it shall think fit after setting aside the commission report and plan to get the mistakes or the defects rectified.”
  • 3. In Shajitha v. Akbar, 2023 (6) KHC 297: 2023 (5) KLT 503, it is opined that (i) Swami Premananda Bharathi’s case (supra) was distinguished and explained in the subsequent Division Bench decision in Francis Assissi’s case (supra), (ii) there was no conflict in the legal position laid down in these two decisions, and therefore, (iii) Laly Joseph v. Francis (2023 (1) KLT 516) cannot claim the “sanctity of binding precedent”. Finally, it is said as under:
    • “Hence, Ext.P7 order passed by the trial court refusing to set aside the Commissioner’s report submitted under Order XXVI Rule 10 C.P.C. deserves no interference. The parties are at liberty to apply for a second commission instead of seeking to set aside the earlier report or to remand back the same.”

Legal Position (Earlier Report Need Not be Set Aside) Lucidly Explained

The law on this issue has been considered in T.K. Vijayakumari v. Subhash Mohan, 2024 (4) ILR (Ker) 411; 2024 KER 60761 (A. Badharudeen, J.). In that decision, the learned Judge, after a thorough examination of the aforesaid authorities, lucidly explained the legal soundness of the Division Bench dictum and followed it, holding that it is open to the Court to appoint a fresh commission without setting aside the earlier commission report.

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Part II

Commission for local investigation: General Propositions

  • Commission for local investigation is appointed to elucidate matters in dispute.
  • A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
  • Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
  • A commissioner cannot be asked to find out the physical possession of a property.
  • A Commission report will be ‘evidence’ even if it is not marked or exhibited.
  • Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
  • It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
  • When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report.
  • If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
  • There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
  • Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

  • Sec. 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 a 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.

Commissions to Make Local Investigations

Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

  • O 26 r 9. Commissions to make local investigations- 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:
  • Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
  • O 26 r 10. Procedure of Commissioner- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
  • (2) Report and deposition to be evidence in suit.
  • Commissioner may be examined in person-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; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
  • (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Part III

Effect of Two Commission Reports in File

Assume, rightly or wrongly, two commission reports were brought to file; then, should the first report be discarded totally?

  • Since (i) the commission reports are pieces of evidence, (ii) it forms part of evidence and (iii) no express legal provision permits to discard such a report, it may not be proper to totally discard the first report.

Is it mandatory to set aside the Commission Report – where the report suffered only some “deficiency or omission”?

  • No.
  • It is to be remitted-back to the commissioner to cure the lacuna. Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. Followed Joy Cherian v. George Cherian, 2009-3 KerLT 64.

Can the partiess be pushed to suffer for the Mistake of the Commissioner

In Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42, it is held as under:

  • “21. In a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for fresh report by deputing another commissioner.”

It is beyond doubt that above observation is made on the principle that the parties should not be pushed to suffer for the lapse or mistake of the commissioner. We can take cue from the proposition that ‘a party should not be pushed to suffer a wrong occasioned by the inaction or fault on the part of the Court’. See :

  • (i) Jang Sing v. Brij Lal, AIR 1966 SC 1631;
  • (ii) A.R. Antulay v. R.S. Naik, 1988-2 SCC 602;
  • (iii) Mudit Verma v. Co-operative Tribunal, 2006 (63) ALR 208 (All)(LB)

When a commission report is set aside, is the court bound to remit it back to the Commissioner for getting a fresh report?

  • Yes.
  • Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. The reason behind it is obvious –
  • Court can appoint a commissioner suo motu (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
  • In Retnamma v. Mehaboob, 2013-3 Civil CC 65 it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection is filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit.

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