Trial Court Cannot Set Aside Advocate Commissioner's Report After It Is Received In Evidence: Kerala High Court

Justice Easwaran S. delivered the judgment in a petition challenging orders of the II Additional Munsiff's Court, Ernakulam, which had set aside an Advocate Commissioner's report and plan in a long-pending suit concerning title and injunction.

The suit for declaration of title and injunction was initially dismissed by II Additional Munsiff's Court, Ernakulam. Subsequently, an appeal was filed against the dismissal which was also dismissed. A Regular Second Appeal was filed before the High Court.

The High Court, by a judgment dated 04.01.2012 remanded the matter back for fresh consideration to the trial Court. The point of remand was that the trial Court should appoint a commissioner with the assistance of a surveyor, should measure out the properties of the appellant and respondent with reference to the respective documents and prepare a report and plan the disputed pathway.

The Advocate Commissioner filed a report and plan on 05.11.2018. The defendant sought amendment of the written statement raising a counterclaim that a portion of the pathway has been encroached upon by the plaintiff and sought additional prayer for recovery of possession. The application of amendment was allowed and the same was challenged before the High Court in an original petition. While disposing of the petition, the High Court held that the order of remand was not an open remand and it was a closed remand with specific directions and hence the amendment could not be allowed by the trial Court.

Once the matter went back to the trial court, the defendant filed another application seeking to set aside the report of the advocate commissioner and the sketch of the surveyor. The trial Court allowed the application and passed the impugned order. This order is challenged in the present original petition.

The Counsel for the petitioner submitted that the trial court was wrong in allowing the application for setting aside the report of the Advocate Commissioner. It was further pointed out that by proceedings dated 20.11.2024, the Court has accepted the commissioner's report in evidence and marked it as an exhibit. It was argued that once the trial court has exercised is powers under Order XXVI Rule 10(3) of the Code of Civil Procedure, it cannot review the same and strike off the evidence from the record.

The respondents contended that the prime contention of the defendant is that there is no pathway as described in the Commissioner report at any point of time and hence the report of the advocate commissioner is seriously flawed. It was further submitted that the respondent has already filed an objection to the report and the trial court has only exercised its powers under Order XXVI Rule 10 of the Code of Civil Procedure Code.

The Court also considered whether the defendants could challenge the manner in which the Commissioner had measured the properties after the report had already been acted upon and received in evidence.

The Court recognised that a Commissioner's report is only a piece of evidence and is not binding or sacrosanct. A court is therefore free to assess its evidentiary value and may ultimately decline to accept the findings contained in it.

In the present case, the Advocate Commissioner had been examined and the Commissioner's reports were marked in evidence. The surveyor was subsequently examined and his evidence was also recorded.

The High Court held that once the Commissioner's report has been received in evidence, it is impermissible for the trial court to subsequently set it aside on an application by a party or otherwise.

The Court observed that any objection to the report ought to have been pressed before the court decided to receive the report in evidence. Once the report, along with the evidence of the Commissioner and surveyor, formed part of the record, the parties could only seek to disprove its contents through other cogent evidence.

The Court relied on the decision in Smt. Rama Ghose v. Madanlal Bothra [AIR 2005 NOC 365 (Cal), where it was held that although a Commissioner's report is not binding on the court, once the report and the evidence taken by the Commissioner are admitted and form part of the record, they constitute evidence in the suit.

“Thus, when the commissioner and surveyor were examined and, upon a subjective satisfaction, the court had received his report in evidence, it was completely at remiss when it chose to exercise the power under sub-rule (3) of Rule 10 of Order 26 CPC.” Court noted.

The Court also rejected the defendants' contention that the Commissioner's measurements were defective because they were not carried out with reference to survey records and field measurement books.

It noted that the earlier remand order had specifically directed the appointment of a Commissioner with the assistance of a surveyor to measure the properties and the disputed pathway with reference to the respective documents. There had been no direction requiring identification of the properties through survey records in the manner subsequently suggested by the defendants.

Importantly, the defendants had been present when the Commissioner commenced the inspection but had not then objected to the manner of measurement or requested that the exercise be carried out differently. The High Court therefore characterised the objection as an afterthought.

The Court further held that judgments laying down procedures for survey measurements could not be treated as creating a fresh cause of action for a party to seek remittance of a Commissioner's report after failing to raise the objection at the appropriate stage.

The Court thus concluded that the trial Court had committed serious procedural irregularity when it chose to accept the application for setting aside the report of the commissioner and entertain the same after the closure of evidence.

“The act of the court in entertaining the application for setting aside the report of the Commissioner is wholly impermissible and is a procedural irregularity which requires correction at the hands of this Court in exercise of the powers under Article 227 of the Constitution of India.” Court noted.

The Court consequently set aside the trial court's orders, dismissed the application seeking to set aside the Commissioner's report and directed the Munsiff's Court to decide the suit on the evidence already available. The trial court was directed to dispose of the suit within two months of receiving the judgment.

Case Title: S. Abdul Razzak v C.B. Suraja Devi and Anr

Case No: OP(C) 747/ 2025

Citation: 2026 LiveLaw (Ker) 513

Counsel for Petitioner: R.D. Kalkura, Harish Gopinath, H. Kiran, P.I. Najumal Hussain

Counsel for Respondent: G. Rajagopal, S. Leelalakshmi, Jayadeep Sajan, Abdel Bennet Jacob, Anagha V. Santhosh