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WORKSHOP - III

KRISHNA DISTRICT

TOPIC - III

APPOINTMENT OF ADVOCATE
COMMISSIONER
S.No Name of the Officer Page Number
Sri G. Bhupal Reddy,
1. 1. Chief Metropolitan Magistrate, 1-7
Vijayawada
Ms. M.Anuradha,
2. 2. Senior Civil Judge, 8-20
Kaikaluru
Sri .P.David,
3. 3. Principal Senior Civil Judge, 21-23
Vijayawada
Smt. M.Meena Devi,
4. 4. I Addl. Senior Civil Judge, 24-31
Vijayawada.
Sri Shaik Ibrahim Sharief,
5. 5. I Addl. Junior Civil Judge, 32-38
Machilipatnam
Sri M. Subba Rao,
6. 6. Prl. Junior Civil Judge, 39-57
Nuzvid
Sri Gubba Prabhakar,
7. 7. Addl. Junior Civil Judge, 58-67
Nandigama
Sri V.Krishna Murthy,
8. 8. Special Magistrate, 68-70
Nuzvid.
 1

APPOINTMENT OF ADVOCATES COMMISSIONER

Paper Presented by

Sri G. Bhupal Reddy,

Chief Metropolitan Magistrate,
Vijayawada.

The word „Commission‟ is not defined in the code of Civil Procedure. The
„commission‟ can be understood a person/group of persons who have been
given an official job of finding, information about something or controlling
something. In other words to formal appointment or assignment to do a task
or function.
According to Section 75 and Order XXVI of C.P.C., Court has discretion
to appoint a commissioner for the purpose of examination of any person; to
make a local investigation; to examine or adjust accounts; to make a
partition; to hold a scientific, technical, or expert investigation; 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; to perform
any ministerial act.”
Before appointing commissioner, Court shall examine pleadings, relief
claimed and real controversy between parties. The discretion to appoint
Commissioner has to be exercised in a judicious and sound manner and not
whimsically. 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 other 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.
Orders I to XX of Code of Civil Procedure deal with the procedure
relating to the trial of all types of suits. The subsequent orders of C.P.C. deal
with procedure of different types of suits and of different occasions which are
not general or common to all suits.
As already stated above Order XXVI C.P.C. deals with Commissions.
Appointment of Advocate commissioner may not be necessary in all civil
cases. Secs. 75 to 78 contemplate the incidental proceedings in respect of the
Commissions. Sec. 75 empowers the civil court to issue commissions.
Or.XXVI C.P.C. consists of 22 Rules. While Rule-1 empowers the court for
issuing commission to examine the witnesses, Rule-2 says the same can be
done on the application by any party to the suit or on its (court) own motion.
Therefore, the court can appoint a Commissioner even without any
application from the parties to the suit, if it considers the such appointment is
necessary for just conclusion of the suit.
 2

Rule-9 of Order-26 is an important one as it deals with the

commissions to make local investigation. In usual practice more applications
filed for appointment of advocate-commissioner for local inspection than any
other purpose. The commissioner may be appointed for performing a
Ministerial Act, for the sale of movable property, for examining or adjust
accounts etc., Rule-13 of Order-XXVI empowers the court for appointment of
Commissioner for the purpose of making partition of immovable properties.
Rule-15 says the Commissioner Fee shall be paid into the court by the party
for whose benefit the commission is issued or at whose instance the
commission is ordered. Therefore, even when the court appoints an Advocate
Commissioner, it can direct any of the party for whose benefit the commission
is appointed, to pay the expenses of the commission. The said rule further
says the commissioner fee shall be reasonable.
Rule-16 contemplates the powers of the Commissioner. It says the
Commissioner examine the parties, witnesses, any other person and call for
documents and enter into any land or building at a reasonable time. Rule-16
(A) deals with questions objected to before a Commission. It says the
Commissioner shall take down the question, the answer and the objection
leaving the party to get the question decided by the court.
Rule-17 says the provisions relating to summoning of parties,
witnesses, imposing of costs shall apply to the Commissioner.
Section 132 of the Code of Civil Procedure exempts certain women
according to whose customs and manners (Burqa or Parda Nashin women)
they ought not to be compelled to appear in public from personal appearance
in court.
Section 133 of the Code of Civil Procedure exempts certain high
dignitaries such as the president, Vice President, Speaker, Union Ministers,
Judges of the Supreme Court, Governor of State, Judges of the High Court
etc., In such cases a commission can be issued to examine such high
dignitaries if, it is required.

Order XVI-A C.P.C. deals with the attendance of witnesses who are in
Jail or prison. Rule-7 of the said order says that a court can issue a
commission to examine person who is in prison.

Order XV-A Rule-6 (l) says the evidence can ordered to be recorded by
commissioner in respect of case management hearing.

Order XVIII Rule 4 (2) says that the cross-examination of a witness shall be
recorded by court or by commissioner appointed for that purpose.
 3

As can be seen from Sub Rule 2 to 8 or Rule 4 of Order XVIII C.P.C. the
Commissioner has all the powers as that of a Judge in respect of recording of
cross-examination including to record the demeanor of the witness.

The Court may also issue a commission under rule 4 of order 26 for the
examination of a person who is a resident beyond the local limits of its
jurisdiction or a Government, who cannot in the opinion of the Court attend
without detriment to the public service.

Under rule 5 of order 26 the court may issue a commission or a letter of

request for the examination of a person residing abroad.

Under the provisions of Order 39 rule 7 C.P.C. Commissioner can be

appointed for detention, preservation or inspection of any property which is
the subject matter of the suit or as to which any question may arise--
Y.Sambaiah Vs Basavapunnaiah AIR 1975 A.P. 15. In this case the court
appointed a commissioner exparte for seizing a lorry the subject matter of the
suit.

The difference between the report filed by the Commissioner appointed

for the purpose of examination of a witness and the report filed by the
commissioner along with the evidence taken by him under rule 10 of Order-
XXVI is noteworthy. The Apex court in Yogendra Vs Markandeswara
reported in AIR 1971 SC 690 considered rule 8 of order XXVI and held that
because no objection was raised by the appellant to the admission of the
recorded statement it could be considered although the trial court has not
passed any order under rule 8.

The report of the Commissioner appointed under any of the provisions

of rule 10-A, 10-B or 10-C shall be dealt under rule 10. In other words it will
form part of the record and shall be read in evidence.

The report of the commissioner appointed for examination and

adjustment of accounts under rule 11 shall be evidence in the suit as per sub
rule 2 of rule 12. The report of the commissioner appointed for effecting
partition of the properties shall have to be considered with reference to the
objections raised by the parties if any under rule 14 and upon confirmation a
decree shall follow.

Order XVIII Rule 19 says Notwithstanding anything contained in rules

under this order, the court may, instead of examining witnesses in open
court, direct their statements to be recorded on commission under rule 4A of
Order XXVI
 4

Rule-113 of Andhra Pradesh Civil Rules of Practice, 1990 deals with the
procedure for issuance of commissioner warrant, to whom the commission
can be issued, preparation of panel of commissioners etc., Under this rule the
court can appoint an Advocate or a Retired Judicial Officer as Commissioner.
Order XVIII Rule 4 (6) of C.P.C. and Rule 113 of Andhra Pradesh Civil Rules
of Practice, 1990 says the High Court or District Judge shall prepare a panel
of Commissioners to record the evidence under this rule.
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 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 penalize the party and also draw adverse inference against
him. The Hon‟ble Supreme Court further observed that it is not the business
of the Court to collect evidence in favour of one party.
The Hon‟ble High Court in Bandi Samuel & Another vs Medida
Nageswara Rao (http://indiankanoon.org/doc/ 123811861/) observed
that 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 several expressions in this regard. 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 said way, any amount of
evidence in this regard may not help the Court to render a correct finding on
this aspect, as evidence in this regard would be available on the spot at the
ground/field. So, a situation such as this would definitely fall within the
expression of elucidating any matter in dispute to avoid adducing of much
oral evidence by consuming time of Court and parties and ultimately with no
possibility of practical approach for accurate determination of the lis. No
 5

doubt, before appointing an advocate commissioner, Court shall examine

pleadings, relief claimed and real controversy between parties. Court has to
keep in mind therefrom to decide whether there is an actual necessity to
appoint advocate commissioner to decide any real controversy between
parties.
In Varala Ramachandra Reddy Vs. Mekala Yadi Reddy 2010 (4)
ALD 198, , 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.
Evidentiary value of Advocate Commissioners report: A party can
countermand the evidence of Commissioners report by letting in other
evidence. A Local examination by Commissioner can only report on existing
facts and not how they came about, as per decision of Honble Supreme Court
in Lekh Raj V. Muni Lal and others
https://indiankanoon.org/doc/128395/.
In Bandaru Mutyalu https://indiankanoon.org/doc/ 123811861/
held that there is no principle of law or rule or provision that in a suit for bare
injunction, no commissioner can be appointed to measure and demarcate the
property so also even at the initial stage before commencement of trial, leave
about even an ex parte advocate commissioner can be appointed with no
notice even required for such appointment, but for referring to Order XXVI
Rule 18, requirement of notice only for execution of the warrant by the
commissioner appointed even ex parte and thereby, all depends upon the
discretion of the Court from the factual matrix of each case of any necessity to
consider either on the request of plaintiff or on the request of the defendant or
defendants as the case may be.
The Hon‟ble Apex Court in Salam Bar Association Case II upheld the
validity of amendments to the Code of Civil Procedure-1999 & 2002 in respect
of appointment of advocate Commissioner for recording cross-examination in
all cases irrespective of any special reasons. There is no hard and fast rule of
in which case commissioner to be appointed and in which it is not, by the
Court of its own without even application. The appointment of a commissioner
by Court of its own by virtue of the enabling provision under Order XVIII Rule
19 r/w Rules 4 & 5 and Order XXVI Rules 4 & 4A CPC cannot be found fault.
The burden to prove the possession is squarely upon the respondent.
Appointment of Commissioner in suits for injunction, be it; at the instance of
the plaintiff, is a rare phenomenon. Even where such Commissioners are
appointed, it would be only for the limited purpose of clarifying the physical
features of the suit schedule property.
 6

Appointment of Advocate-Commissioner for the second time:-

In S. Rukman Naik vs P. Anjani Prabha and another 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? The Court held that
under sub-rile (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. 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.
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 cam about, as per decision of Hon‟ble Supreme Court
on Lekh Raj V. Muni Lal and others (2001) 2 Supreme Court Cess 762.
Whether the Execution Court has power to appoint an Advocate-
Commissioner?
Rule-18-A of Order- XXVI says the provisions of this order shall apply to
the proceedings in execution of a decree or order.
In Gurram Anantha Reddy vs Katla Sayanna 2015 (4) ALT 302, it
was held : “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, the
provisions or Order 26 of Ode of Civil Procedure are applicable to the
proceedings in execution of a decree or order also.”
Rule-18B says the court shall fix a date for return of commissioner
warrant after execution and the time shall not be extended except for the
reasons to be recorded that there is sufficient cause for extending there.
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
 7

judicious and sound manner and not whimsically. Before appointing

commissioner, Court shall examine pleadings, relief claimed and real
controversy between parties. 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.
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APPOINTMENT OF ADVOCATE-COMMISSIONER

Paper presented by

Ms. M.Anuradha,
Senior Civil Judge,
Kaikaluru

INTRODUCTION: The term interlocutory application or interlocutory petition

has not been defined anywhere in civil procedure code. However, civil rules of
practice has defined the term interlocutory application in Rule 2(j), as an
application to the court in any suit, appeal or proceeding already instituted in
such court other than a proceeding for execution of Decree or Order. Several
interlocutory orders arise during the course of trial of a suit, hearing of an
appeal or enquiry in a proceeding. Among the myraid of interlocutory
applications that come before a civil court on a regular basis the topics
dealing with the appointment of advocate commissioner is prominent one. It
is not an exaggeration to say that not even a day passes for any judicial officer
dealing with civil cases without deciding on some aspect relating to
appointment of advocate commissioner.
INCIDENTAL PROCEEDINGS: The appointment of advocate commissioner
and the incidents thereof is dealt in the chapter of incidental proceedings.
Section 75 of the code envisages incidental proceedings. Incidental or
consequential orders are those which follow as a matter of course being
necessary compliments in the main order without which the matter would be
incomplete or ineffective. The concept of „Commission‟ is an important
subject matter in the branch of CPC. Commissioner is an impartial person
who is appointed by the Court and act as an agent of the Judge. The power of
the Court to issue Commissioner, by the Court, is for doing full and complete
Justice between the parties. The Commissioner in effect is a projection of the
Court appointed for a particular purpose. If an application is filed seeking
appointment of Advocate commissioner, it must be decided without any delay
and within a reasonable time. It was so observed in : P.PEDDA SAIDAIAH v.
T.PADMAVATHI [1997 (5) ALT 818].The above decision is also referred in
another case between S. SINGAREDDY (DIED) & Another vs., K
RAMACHANDRA REDDY (dt 27-10-2005) A.P. High Court
LEGAL PROVISIONS FOR APPOINTMENT OF COMMISSIONERS
S.No. Purpose of commissioner Provision of law
1 General provisions as to Sec.75-78 of CPC; Rules.134 to 141 of
appointment of commissioner civil rules of practice.
2 Commission for local inspection Or.XXVI-R.9,10,15,18B Of CPC
3 Commission to record Or .XXVI,R.1-8,16,16A,17,18 of CPC.
evidence OR 18 Rule 4 CPC
 9

4 Commission for scientific Or.26,R.10A of CPC

investigation
5 Commission to perform Or.26,R.10B of CPC
Ministerial acts
6 Commission for sale
movable property
7 Commission for Accounts
8 Commission for partition
9 Issuing of commission
Hon‟ble High Court
of Or.XXVI -R.10C, Or.XXXIX-R.6 and 8 of
CPC Rules 261 to 264 of civil rules of
practice
Or.XXVI- R.11,15,16 and 17 of CPC
Rules 179-184 of civil rule of practice.
Or.XXVI-R.13,14 and Or XX-R.18 of
CPC
by Or.XXVI Rule 19 of CPC

How Commission is issued: Part-III of the CPC deals with Incidental

Proceedings covering Sections 75 to 78 thereof. Section 75 contemplates
power of Court to issue commissions; Section76 indicates commission to
another Court; Section 77 adumbrates letter of request while Section 78
outlines commissions issued by foreign Courts. Section 75 of the CPC enacts
that the Court may issue a Commission for any of the following purposes:
1) to examine any Person
2) to make a local investigation
3) to examine or adjust accounts
4) to make a partition
5) to make a scientific investigation
6) to conduct for sale ,
7) to perform a ministerial act.

1) COMMISSION TO EXAMINE ANY PERSON:

Section (76 – 78), order (XXVI) 26, Rules (1 – 8) ,Order 18 Rule 4 of the Code
of Civil Procedure deals with the Commission to examine witness. The court
may issue a commission for the examination on interrogatories or otherwise of
any person in the following circumstances: –
 Rule 1 of Order 26: On Medical grounds:When the witness is unable to
attend to court proceedings due to medical reasons.
 Rule 2 of Order 26: On its own motion: On sue moto or on application
supported by affidavit by any party.
 Rule 3 of Order 26: Commission to any person which the court believes is
a proper person to examine a witness who resides within its local
Jurisdiction ;
 Rule 4 of Order 26: issue a commission for the examination on
interrogatories or otherwise for the following persons:
(1) Any person residing beyond the local limits of the Jurisdiction of the
court, or
(2) Any person who is about to leave the Jurisdiction of the court before the
date on which he is required to be examined in court,
(3) Any person m in the service of government and who cannot, in the opinion
of the court, attend without detriment to the public service; or
(4) if he is residing out of India and the court is satisfied that his evidence is
necessary;
 10

In D.Chendrakala and Ors. Vs.Matashrama seva Sangam, 2007(1) ALT230

it was held that in complex cases the prayer for recording of evidence by
commissioner could be declined by the Court instead of mechanically ordering
the petition, ought to had in exercise of judicial discretion declined to appoint
a commissioner to record the evidence of witnesses to be examined to prove
the disputed will, because there would be a difference in the way a witness
gives evidence when he was examined in the comfort of his house and in
cases where he was examined in open court.
2) TO MAKE LOCAL INSPECTION (Rules 9 & 10)
The court may, in any suit, issue a commission to such person as it thinks fit
directing him to make local investigation for the purpose (a) elucidating any
matter in dispute, (b) ascertaining the market value of any property or the
amount of any mesne profits or damages .In Padam Sen vs St. of U.P. it was
held that the object of local investigation is not to collect evidence which can
be taken on the spot in view of the peculiar nature of the suit. Such evidence
enables the court to properly and correctly understand and assess the
evidence on record and clarify any point which is left doubtful. The Hon‟ble
High Court of Andhra Pradesh, after referring to the dicta in Ponnusamy
Pandaram vs The Salem Vaiyappamalai Jangamar, observing the object of
local investigation under Or.XXVI, R. 9 of the Code 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.
In 2013 the Hon‟ble High Court of Ap in Bandaru Muthyalu and
another Vs Pallimappala raju CRP No.5525/2011 held that in situations
where there is controversy as to identification, location or measurement of
land, local investigation should be done at the early stage so that the parties
are aware of the report of the Commisioner and go to the trial prepared.
In a suit for injunction:-
The law does not prohibit or any bar imposed on the Court from appointing
a Commissioner in a suit for Injunction simplicitor on the ground of collection
of evidence in favour of petitioner. It all depends upon facts and
circumstances of the Case. The Hon‟ble AP High Court in Varala
Ramachandra Reddy Vs Mekala Yadui Reddy and others, 2010 (4) ALD
198 held that an Advocate commisioner can be appointed in an injunction
suit for the local inspection of the suit site and to demarcate the suit schedule
property with the help of surveyor.
The Hon‟ble AP High Court in podugu Appa Rao and others Vs
Grandhi Sathya Raju and others CDJ,2008 APHC 1132 Held that the
 11

Advocate commisioner can be appointed to find out whether the tenant had
committed any act of waste, effecting the value and utility of the building as
sustainable under Law.
The Hon‟ble AP High Court in Mallikarjuna Sreenivasa Gupta Vs
K.Sheshireka, 2006 (3) ALD 362 held that in a case filed for declaration of
title, an application was filed contending that the defendant has encroached
upon portion of the site. In such cases the court held the appointment of
Advocate Commisioner as necessity because by mere looking into the sale
deed it is not possible to detemine whether there is any encroachment into
suit property.
In Jammi Venkata Krishna Rao and others Vs. Jammi Venkata
Hanuma Ravindranath 2016(5) ALT 14 it was held that when identity of
suit property is in dispute in injunction suit appontment of commisioner to
note down its physical features is not erronous especially when it is alleged
that defendants are trying to obliterate the physical features of the property.
In Bandi Samuel and another Vs. Medida Nageswara Rao 2017 (1)
ALT 493 it is held that an advocate commissioner can be appointed in a suit
for permanent injunction for local inspection of the suit site and to demarcate
the suit schedule property with help of the surveyor.In this regard our Hon‟ble
A.P. High Court, gave illustrations where appointment of commissioner can be
done in a suit for injunction.
The Hon‟ble Andhra Pradesh High Court, in K.Dayanand And Another vs P.
Sampath Kumar, after considering the dicta observed in several rulings 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.
In Shaik Sareena Kasam vs., Patan Sadab Khan (APHC) at para-10, the
court observed that “where there is dispute regarding boundaries or physical
features of the property or any alienation of encroachment as narrated , the
facts have tobe physically verified because the recitals of the documents may
not reveal the true facts and measuring the land on the spot by surveyor may
become necessary.” In another case i.e., Bandaru Mutyalu (DB) (APHC) it was
observed that “there is no principle of law or rule or provision that in a suit for
injunction, no commissioner can be appointed to measure and demarcate the
property so also even at initial stage to be commencement of trial, leave about
even an exparte
 12

Commission for measuring 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. (So also:- M. Vedapuri
vs. O.M.Raj and another, reported in CDJ 2008 MHC 4400; Teraj Sarammal
vs. Bajranglal Daman, CDJ 2004 MHC 947.)
Commission to demarcate the schedule property:
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 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 commisioner by the trial court for the purpose of demarcating
schedule property and fix boundary stones to the propety 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.
3) COMMISSION FOR SCIENTIFIC INVESTIGATION: (Rule 10-A)
O.26 R.10 A deals with Commision for Scientific Invetigation. As per the
provision if the scientific investigation is required to be conducted in a suit for
deciding the dispute between the parties and in the opinion of court such
investigation cannot be done before the court, then the concerned court may
issue a commision to such person directing him to address such questions
and get a report to the court. Scientific investigation also includes sending of
the documents to a forensic expert in order to find out the truth or to compare
the signatures made in the disputed document with that of admitted
documents.
4) COMMISSION TO PERFORM MINISTIRIAL ACTS: Or.26 R.10 B
When court appoints commissioner for performance of any Ministerial act,
which cannot be conveniently be performed before the court, the
commissioner is not performing any judicial act nor any act which would
change the rights of the parties or the procedures and the rules of evidence so
as to prejudicially effect the rights of parties in relation to procedure. The
report of commissioner for performance of such act shall form part of record
under Rule 10(2) of Or.26 CPC. Observer in the Code of Elections, special
officers appointed for survey etc., are the instances. Where any question
 13

arising in a suit involves the performance of any ministerial act which cannot,
in the opinion of the Court, be conveniently performed before the court, the
court may issue a commission to such person as it thinks fit, directing him to
perform that ministerial act and report thereon to the court. In Damoder
Reddy (died per Lrs.) ,Chevella Mandal VS M. Mohan Reddy,Chevella
Mandal and ors.2007(3)ALT 664 it was held that –Appointment of
Commisioners for performance of ministerial act, contains identical provision
by treating him as officer of court,so he was not subject to be examined as a
witness.
5) COMMISSION FOR SALE OF PROPERTY: (Rule 10-C)
Where, in any suit, it becomes necessary to sell any moveable property which
is in the custody of the Court, pending the determination of the suit and
which cannot be conveniently preserved, the court may, issue a commission
to such person as it thinks fit, directing him to conduct such sale and report
thereon to the court.
6) COMMISSION FOR ACCOUNTS: (Rules 11 & 12)
In any suit in which an examination or adjustment of accounts is necessary,
the court may issue a commission to such person as it thinks fit directing him
to make such examination or adjustment. The proceedings and report of the
Commissioner (if any) shall be evidence in the suit.
7) COMMISSION FOR PARTITION: (Rules 13 & 14)
Where a preliminary decree for partition of immoveable property has been
passed, the court may issue a commission to such person as it thinks fit to
make a partition or separation according to the rights as declared in such
decree, except in undivided estates assessed to the payment of revenue where
the partition is made by the Collector under S.54 and Or.XXVI R.13. The
commissioner was merely called upon to make proposals for partition on
which the parties would be heard, and the court would adjudicate upon such
proposals in the light of the preliminary decree and the contentions of the
parties. The proposals of the commissioner cannot from their very nature be
binding upon the parties nor the reasons in support thereof.
8) COMMISSION BY THE HON‟BLE HIGH COURTS:
If a High court is satisfied:
(a) that a foreign court situated in a foreign country wishes to obtain the
evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature and
(c) that the witness is residing within the limits of the High Court‟s appellate
jurisdiction, it may issue a commission, upon application by a law officer of
the state government, for the examination of such witness.
 14

The commission will be issued to any court within whose jurisdiction

the witness resides or to any person deemed fit to execute it where the
witness resides within the local limits of the original civil jurisdiction of the
High Court.After the commision has been executed it shall be returned
together with the evidence to the Hon‟ble High Court,which shall forward it to
the Central Government along with the letter to request for transmission to
the foreign court.(Order XXVI,Rules 19-22)
CIRCULARS BY HON‟BLE HIGH COURT- APPOINTMENT OF
COMMISSIONER:
The Hon‟ble High Court of AP has issued two circulars regarding the
appointment of commissioner and relating to the procedure ought to be
followed in appointment of commissioners. They are ROC No.694/SO/77
dated 15.7.1977 and ROC No.405/SO/2007 dated 23.4.2007.
APPLICATION FOR COMMISSION:
Every application for the issue of a commission shall state grounds
thereof and shall supported by an affidavit setting forth the length of time that
the execution of the commission is likely to occupy, the details regarding the
locality where the commission is to be executed and its distance from the
court,the estimated expenses of the commission and the remuneration,if
any,of the proposed commissioner and in the case of the commission for local
inspection or to examine accounts,mesne profits etc.,the specific points on
which the enquiry is desired.
GUIDELINES FOR APPOINTMENT `OF ADVOCATE COMMISSIONER:
The power of the court in appointing a commission is discretionary. For
Issuance of Commission, the satisfaction of the Court which is more essential
than the request of the parties. 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 he matter in issue, relating to the main case as well as the
facts leading to the dispute. In a recent judgment between V Rama Naidu &
others vs V Rama devi 2018(3) ALT 58; it was held that there is no hard
and fast rule of in which case the commissioner to be appointed. In a suit for
specific performance of agreement to sale, initially a commissioner was
appointed for cross examination of Pw1 and when he has not executed the
warrant, the court suo-motu, appointed another commissioner for the
purpose by cancelling the previous commission/warrant. It was also observed
 15

that appointment of the commissioner by the Court on its own by virtue of

enabling provisions under Order 26 Rule 19 r/w. 4 & 5, 4A CPC cannot be
find fault including guidelines in the expression of Salem Bar Association
case-II.
In Ponnu Swamy vs., Salem Vaiyappamalai Jangamar Sangam it
was held that the object of Order 26 Rule 9 CPC is to collect evidence at the
instance of parties who relies on same and which evidence cannot be taken in
court but could be taken only from its peculiar nature on the spot. This
evidence will elucidate a point which may otherwise be left in doubt or
ambiguity on record. The Court cannot prevent a party from adducing the
best evidence, if such evidence can be gathered with the help of a
Commissioner. In a suit for possession if an application is filed seeking
appointment of a Commissioner for the purpose of collection of evidence, such
application is liable for rejection. It is well settled that if the oral and
documentary evidence adduced before the Court are sufficient enough to
adjudicate the controversy in the suit, the application for appointment of a
Commissioner is liable for rejection. The report submitted by the
Commissioner constitutes an important piece of evidence and it cannot be
said that such report has no evidentiary value since the statements made
therein are not tested by cross-examination of the Commissioner.
In Sarala Jain‟s case as was held by our Hon‟ble High Court, following the
verdicts of Hon‟ble Apex Court in mohd.mehtab Khan‟s case,, the Court,
while appointing a Commissioner has to keep in mind the following aspects:
(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 to avoid any pre-trial decrees.
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.
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
 16

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.
APPOINTMENT OF COMMISSIONER FOR SECOND TIME:
As a general rule, once a commission has been appointed and a report has
been submitted, the Court will consider it and take an appropriate decision in
accordance with law. It would not appoint second commission, Vide 1990 (2)
LS 29 (AP). But if the Court finds that the first commission failed to discharge
its duty or the Commissioner was not a proper person, second commission
can also be appointed, GUTHULA v. RUDRARAJU [1998 (5) ALT 410] In
Gopalakrishnan vs P. Shanmugam on 21 January, 1995 = (AIR 1995 Mad
274) Order XXVI, Rule 9 of the Code of Civil Procedure provides for the
appointment of Commissions for local investigation and it stipulates 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. While considering the scope of the powers, the duties
and obligations as also the considerations to be kept in view before proceeding
to appointee one or more than one commission or subsequent Commissions,
Courts have laid down certain principles and guidelines to be adhered to.
It has been held that a Court cannot issue a second Commissioner,
mechanically for the mere asking without setting aside the earlier report and
even if the Court chooses to re-issue the Commission, sufficient and proper
reasons have to be recorded and that an indiscreet and indiscriminate
exercise of power, in this regard is likely to affect even a fair trial of the suit or
 17

the proceedings. That apart, merely because on an earlier occasion, the

Commission has been re-issued, per is not a justification also to assume that
the earlier report submitted by the Surveyor Commissions was bad or
perfunctory or deserve to be scrapped. It might have been re-issued for getting
some additional particulars and that from the fact of re-issue of commission
alone it cannot be contended that the earlier report was bad or that it was
scrapped. Mechanical and indiscriminate appointment of more than the
Commission, merely because the Court thinks the other party to the
proceedings may not be prejudiced or that the expenses for the commissions
are going to be borne by the applicant for the purpose would create an
unhealthy practice of not only more than one report on records, but also
would lead to the vice of a person or party to the proceedings not being
satisfied with the Commissioner's report seeking for the appointment of
successive Commissioners till he is able to get a report of his choice.
In S.Rukman Naik Vs P.Anjani Prabha and Anr,2004 (4) ALD 876,
an interesting question came for consideration. While the first report is
pending consideration, is it proper on the part of the Court to appoint
Advocate- Commisioner for the second time for inspecting the site and
submitting his report – To answer, the Hon‟ble Andhra Pradesh High Court
held that in Para 21 as follows:
“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,Rule10(3).
In M.Chenna Venkata Reddy and others Vs.A.P. Housing Board,
Gruhakalpa, Hyd.and others 1999(5) ALT 223 it was held that
appointment of Second Commisioner only justified when Court declares
finding of First Commisioner unsatisfactory and there is need for further
inquiry.
In Pamula Narasaiah and Anr. Vs Pamula Murali and Ors,
2002(1)ALD 393, 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 Commisioner.”
 18

In 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. (So also: Kitnammal vs Nallaselvan And Ors, (2005) 2 MLJ 227).
EXPARTE APPOINTMENT OF COMMISSIONER:
Except where the purpose of appointing a commissioner is to note them
physical features existing as on that day,appointment of commissioner is to
be under taken only after hearing both the parties.In Chalapathi veeranna
and ors vs Chalapathi venkatachalam AIR 1959 AP 170 it was held that it
is not a condition precedent to the issue of a commission for local
investigation to serve notice on the opposite party.The evidence of
commissioner appointed at the earlier stages of the suit to note the physical
features would certainly go a longway in helping the court to arrive at the
truth.
EVIDENTIARY VALUE OF ADVOCATE COMMISSIONER‟S REPORT:
A party can countemand the evidence of Commisioner‟s report by letting in
other evidence. A Local Commisioner can only report on existing facts and
not how they came about. In K.Viswanathan vs. D.Shanmugham Mudaliar
and Anr. Reported in1986(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 Chintapatla Arvind Babu vs., K Bala Kistammka it was observed that
Report of Advocate Commissioner is evidence and it is generally more credible
evidence. In this regard the implication of Rule 10 cannot be lost sight of
when it says that the report of the Commissioner and evidence taken by him
as Commissioner in a suit shall form part of record. But, as per decision of
Hon‟ble Supreme Court in Lekh Raj V. MuniLal and others, (2001) 2
Supreme Court Cases 762, and as was held 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. It was also held that once a
local commissioner report was brought on record as part of evidence to show
the subsequent events, it was incumbent on the Court to consider the same.
 19

COMMISSIONER REPORT IS PART OF RECORD-COMMISSIONER NEED

NOT BE EXAMINED AS A WITNESS TO PROVE IT:
According to O.26 R.10(2) the report of the commissioner shall be the
evidence in the suit and shall form part of record.But either the court on its
own or parties with the permission of the court are at liberty to summon the
commissioner to examine him personally touching any of the matter referred
to him or mentioned in his report. If the court,for any reasons,is dissatisfied
with the report,it can also direct such further enquiry to be made as it shall
think fit,according to sub-rule (3) of Rule 10.The law is settled in this regard
that the report of the commissioner be considered as part of record and is
evidence irrespective of the fact whether commissioner is examined as a
witness or not.
In Karri Mariyamma and Anr. Vs Penumatcha Ramamma and Anr
2007 (1)ALD 127 it was held that in this context,it needs to be observed that
the report submitted by the commissioner under Rule 9 of Order 26
CPC.becomes part of the record,as is evident from Rule 10 it self.The
necessity for examination of a commissioner would arise,if only one of the
parties disputes the correctness of the report.When no objections are filed to
the report and when Rule 10 of Order 26 CPC. Mandates that the report
together with the enclosures shall become part of the record of the suit,the
mere fact that the commissioner was not examined,does not disentitle the
court from taking the report into account. The Hon‟ble High Court further
cautioned the trial courts that when substantial objections are taken to the
report of the commissioner,it would be advisable and desirable to examine the
commissioner for the purpose of having a clear picture.But on that ground
also,it can not be said that the report can not be looked into by the court
unless the same is exhibited or commissioner is examined as a witness too.It
is open for the parties also to examine the commissioner on the manner in
which he had conducted the investigation.This is only an interpretation
which can be placed under R.10(2).It is a different matter if neither the court
nor any of the parties take any objection to the report.In such a situation the
report becomes final,part of the record and can also be taken as a piece of
evidence.But if once the party objects to it and specifically wants the
commissioner to be examined, the court has no option except to examine the
commissioner.
COMMISSIONER IN EXECUTION PROCEEDINGS:
Order 26 R.18(A) provides that provisions of Or.26 are applicable to execution
proceedings.
(vide -Gurram Anantha Reddy vs Katla Sayanna(30.3.2015). In Vadlamani
Suryanarayana Murthy vs Saripalli Balakameshwari 2007(2)ALD 94 the
 20

Hon‟ble High court held that B Narasappa vs B Govindappa 1992(1)ALT 48

is per incuriam. In this case the court held that the JDR can certainly put
forward his grievance and then it shall always be competent for the executing
court to adjudicate the same but the appointment of a commissioner in
matters of this nature would amount to reopening the entire issue and may
lead to a situation of annulling the decree as a whole.
COMMISSIONER CANNOT BE APPOI NTED FOR SEIZURE OF ACCOUNTS
BOOKS:
In Padamsen and another vs State of UP,the Hon‟ble apex court further held
that the court cannot seize account books forcibly by appointing an Advocate
Commissioner, it can summon them and if not produced it can penalize the
party or draw an adverse inference against them. It also categorically ruled
out that it is not the business of court to collect the evidence in favour of one
party.
COMMISSIONER CANNOT DELEGATE HIS DUTY TO OTHERS :
If a person is appointed under O.26 R.9 of CPC as a Commisioner for
local inspection, he cannot delegate the said work to any other person as it is
the right of the court alone and if such person as it is the right of the Court
alone and if such person who took the delegated work has executed the
warrant the report cannot be relied upon by any court a the execution of
warrant itself is without jurisdiction (Shamanna Shetty Vs BL.Chenne
Gowda ILR 2006 Karnataka 3588).
PROCEDURE FOR EXECUTION OF COMMISSION:
In any Civil Suit or proceeding, Commissioner appointed, has to follow
the procedure prescribed under Rule 10 of Order XXVI of C.P.C. As per Rule
10, Subrule (1), the commisioner, after such local inspection as he seems
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.
CONCLUSION:
Commissioners appointed by the Court shall act as helping hand in
dispensing the cases in interests of justice according to law. As stated above
the civil court gets several interlocutory applications on appointment of
commissioners day-in and day-out. The courts trying these applications are
expected to dispose of the applications on merits as expeditiously as possible
because „Delay in justice is Denial of justice”.
 21

Paper presented by

Sri .P.David,
Principal Senior Civil Judge,
Vijayawada.

The Commissioner is an eye to the Court for effective adjudication of intricacy

between litigant parties.

1. In addition to the existing provision Section 75 and order 26 of CPC

during the year 2002 in amended CPC a new provision was incorporated i.e .

Order 18 Rule 4 for further effective adjudication of Lis. The apt provisions is

Section 75 of CPC which deals with the incidental proceedings . The Section

reads as follows:-

Section -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.}

2. These provisions are regulated by Order 26 of CPC, which deal with

appointment of an Advocate Commissioner to examine the witnesses, for local

inspection of the disputed property, for inspection of accounts, partition of

property in preliminary decree for passing of final decree.

3. Order 26 provides provision to appoint commissioner to examine the

witnesses. If the witness,if suffering from any illness or infirmity and could

not attend the court and the Commissioner shall also be appointed for

interrogatories. The Commissioner also can be appointed for examination of

 22

an Expert who is gave his report Under Section 45 of Indian Evidence Act and

who is exempted under Sections 284 to 295 of Cr.P.C.

4. Now a days, seeking appointment of an Advocate Commissioner has

become an order of day either on bonafideness or on delayed tactics. It has

become the practice of both parties for non cooperation of the Commissioner,

finally after considerable period the Commissioner used to return the warrant

with an endorsement of his helplessness to execute the warrant, again the

Court has to examine the witness in the open Court. Sometimes the

Commissioners used to return the warrant either on infirmity or on the non

cooperation of both parties as well as Advocates and the Court has to look

into whether again another Commissioner is necessity or to proceed the court

by itself.

5. The parties used to file petitions to appoint another Commissioner on

some grounds it is not routine manner and mandatory on the part of the

Court to appoint another commissioner unless the previous report is

scrapped.

6. Even under Order 18 Rule 4 CPC every party is asking for appointment

of Advocate Commissioner to record the evidence of party as if it is a right.

Even in those circumstances also, the purpose of appointing the

Commissioner is being mis used as both parties and the Counsels are

quarreling with each other at the time of recording the evidence on every

aspect, both the counsels causing interruption, as a result, returning the

warrant. The purpose of appointment of advocate under Order 18 rule 14

CPC for speedy justice without consuming court‟s most time but the result is

otherwise.

7. It has become the practice of parties to file petition along with the

plaint for local inspection to inspect the disputed property localize, identify

and demarcate the disputed property. It is settled law that the Commissioner

shall not be appointed for fishing out the evidence and his Lordship in the
 23

case law between Jayalaskhmi ConstructionVsMava Mahaboob Alikhan

reported in 2006 (2 ) ALT 132 has held that :-

“A Commissioner shall not be appointed for collection of evidence”

In Mukundal Vs Sarada Bai reported in 2006(1) ALT 221 has held that :-

“Commissioner will have a powers of civil court under Order 26 Rule 16 ”

8. In case of recording of the evidence if any objection is raised it shall be

noted and file the report and the Court shall give finding on those Judgment.

The Commissioner has also has power to record the demeanor of witness as

well to summon the witnesses to attend before the Commissioner.

9. In cases of Commissioner appointed for passing of final final decree the

Commissioner shall follow the preliminary decree and file his report giving

particulars to both the parties. If necessary the Commissioner is at liberty to

take assistance of local surveyor and other for arriving just conclusion by the

Court.

10. The court can appoint the Commissioner at any stage of the

proceedings. The paramount consideration is only for effective adjudication of

intricacy.

11. The Courts are facing bitter experience in receiving Commissioners

reports which is one of the reasons for delay in disposal of the case. If the

subject of the appointment of Commissioner properly utilized, it will be

helpful for speed disposal of cases.

 24

APPOINTMENT OF ADVOCATE COMMISSIONER

Paper presented by
Smt. M.Meena Devi,
I Addl. Senior Civil Judge,
Vijayawada.

Appointment of Commissioner in terms of part III i.e. matter

“Incidental proceedings” of CPC is a provided by section 75 of the Code. In
as much as this topic is concerned with the appointment of Commissioner,
empowering the court, it would be apposite to refer the provisions.”
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 makes a reference to “Commissions to examine the witnesses” Rule 9
of Order XXVI provides “Commissioner for local investigation.”
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.
 25

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 if not
produced, it can penalize 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 and others vs. Eswaran and 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) MLJ391, 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 and his report is filed, it can be
questioned by the other side by filing objections as the dispute in the suit 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 Kuttiyappann 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
 26

considered in another case in Minor Amid Stanly and another vs

Lakshmiammal and others 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 Zackaroa 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 to 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.
Appointment of Advocate-Commissioner for the second time:-
In S. Rukman Naik vs P. Anjani Prabha and another 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 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
 27

when C.A. 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 is 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 another vs Pamula Murali and others, citations : 2002 (1) ALD
393, 2001 (6) ALT 385, it was observed as follows : “Therefore I hold that
under sub-rile (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 others (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 cam about, as per decision of Hon‟ble Supreme Court
on Lekh Raj V. Muni Lal and others (2001) 2 Supreme Court Cess 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. Shanmygham
Mudaliar and another reported in 1986 (I) M.L.J. 319 held that under Order
 28

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 Karupannam and another v. Laiappan reported
in 2000-Law Weekly 893 in which the Hon‟ble Madras High Court has held
thus :- “Under Oder 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 other vs. Karukola
Kumarasamy, (2005 (I) ALT 811 = 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 if 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 = n1958 ALT 792 and 1988 (1) ALT 353 and observing the object
of local investigation under O, XXVI, R 9 of the Code which cannot be littled in
Bandaru Mutyalu and another vs Palli Appalaraju, 2013 (6) ALT 26 (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
 29

198, wherein, it was held that an Advocate-Commissioner can be appointed in

an injunction suit for local inspection of the suit 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 Podugu Appa Rao (died) and others
vs. Grandhi Sathiraju (died) and others reported in 2009 (2) ALT 15 = 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 (4) ALT 162 = 2006
(3) ALD 362 in which case, a suit was filed for declaration therein encroached
a portion of the suit. 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, 2011 (4) ALT 541 observing the
dicta in the rulings referred to 2006 (4) ALT 162 (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 and
others vs. Nagesh Sidappa Navalgund and others, reported in CDJ 2007 SC
1339, has held that the learned trial judge may appoint an Advocate-
 30

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 2015 (4) ALT
302, 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,
the provisions or Order 26 of Ode 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, 2011 (4) ALT 541, 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 divided without any delay. As was held in P.
Pedda Saidaiah and other 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 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
 31

controversies in the suit, the rejection of application for appointment of a

Commissioner is a valid one. It is provided under Order XXVI Rule 9of 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.
 32

APPOINTMENT OF ADVOCATE COMMISSIONER

Paper Presented by

Sri Shaik Ibrahim Sharief,

I Addl. Junior Civil Judge,
Machilipatnam.

Introduction
The legal provisions for appointment of commissioners are of different
types as per the provisions under Civil Procedure Code and Civil Rules of
Practice. The General Provisions as to appointment of a Commissioner
envisaged under Sections 75 to 78 of Civil Procedure Code and Rules 134 to
141 of Civil Rules of Practice.
The appointment of Advocate Commissioner is under Section 75, Part-
III Incidental Proceedings of Civil Procedure Code and the power of court to
issue commissions subject to such conditions and limitations as may be
prescribed, the court may issue a commission to examine any person, to
make a local investigation, to examine or adjust accounts, or to make a
partition, to hold a scientific, technical, or expert investigation, 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, to perform any
ministerial act. Appointment of a Court Commissioner is purely discretion of
court and circumstances and purposes mentioned not exhaustive.
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.
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 C.P.C.
Sub-title of Order XXVI of C.P.C. makes a reference to “Commissions to
examine the witnesses”. Rule 9 of Order XXVI provides “Commissioner for
local investigation.”
 33

In view of the observations of the Hon‟ble Apex in Mohd. Mehtab

Khan‟s case, reported in 2013 (3) ALD 64 SC, 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 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.
Moreover, it shall be kept in mind that party shall adduce oral evidence
and place the factual facts of his case at the first instance. Such a function
cannot be entrusted to a commissioner.
An Advocate Commissioner can be appointed in a suit for
injunction simplicitor. 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 is not the business of Court to collect evidence in favour of one party.
In Padam Sen and another vs. The State of U.P., reported in 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 Court cannot appoint an Advocate-Commissioner appointed for
making an enquiry about factum of possession:-
 34

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. 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, it was 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, it was 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.
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.
However, in T.S. Ramu vs. Neelakandan, reported in 2004 (2) CTC
674, it was 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.
Precautions to be taken while appointing as Advocate
Commissioner.
In M.P. Appulu vs. A. Fatima Zohra & another, reported in 1982 (2)
MLJ 340, it was 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
 35

in seeking appointment of Commissioner and secure immediate relief, for

restoring amenities, which is assured to him under Section 17 of the Act.
The appointment of an Advocate commissioner for second time without
passing an order on the first report of the Advocate commissioner is
impermissible. In S. Rukman Naik vs P. Anjani Prabha And Anr, reported in
2004 (4) ALD 876, an interesting question came for consideration. While the
said report is pending consideration, is it proper on the part of 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 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.”
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.
Further in a case in between Durgam Mangamma V. P.Mohan and
another reported in 1991(1) ALT 269, held that “no second commissioner
 36

can be appointed for the same purpose unless and until the report of the first
commissioner is expunged.”
In a case in CRP No.4423/2016, dated 9.2.2017 in between Smt.
M.Saradamma Vs. Smt. Lalithamma and another held by our Hon‟ble High
court that “When an order is already passed, entertaining a second
application again for the relief which is already rejected in the year 2015
seeking re-visit of an advocate commissioner operates as constructive res
judicata. Hence, the said application cannot be accepted. It has been held by
the Hon‟ble High Court in Y.B.Patil and others V.Y.L.Patil reported in AIR
1977 SC 392 that principles of res judicata can be invoked not only separate
subsequent proceedings; they also get attracted in subsequent stage of the
same proceedings. Once an order made in the course of a proceedings become
final, it would be binding at the subsequent stage of that proceedings. Hence,
the concept of constructive res judicata is applicable even in interlocutory
applications.”
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, reported in (2001) 2 Supreme Court
Cases 762. 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 that “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.
Local inspection by advocate-commissioner:-
Object of local investigation under Order XXVI, R. 9 of the Code which
cannot be limited, 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.
 37

The Hon‟ble Andhra Pradesh High Court in the case between Varala
Ramachandra Reddy Vs. Mekala Yadi Reddy and others, reported in 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. If it is a
case in between landlord and tenant, the landlord can seek for appointment of
Advocate Commissioner on the ground that the tenant has substantially
damaged the back portion of the building and is also attempting to
unauthorizedly 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 can be maintainable under Section 18 (A) of
the Act.
Further, the Hon‟ble Andhra Pradesh High Court in the case between
Mallikarjuna Srinivasa Gupta Vs. K.Sheshirekha, reported in 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, the 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.”
The Court has discretionary power to appoint Commissioner:-
In A.Nagarajan vs. A.Madhanakumar, reported in CDJ 1996 MHC
497, it was 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 a case reported in 2015(4) ALT 302 in between Gurram Anantha
Reddy Vs. Katla Sayanna it was observed Order 26 Rules 9 and 18-A and
Section 115 C.P.C. that “Commissioner can be appointed in executions also in
 38

view of Order 26 Rule 18 C.P.C. The Endeavour of the courts should be to see
that the fruits of the decrees are completely received by successful parties and
that the rights of the decree-holder should not be permitted to be frustrated
on untenable technicalities.”
In cases of delivery of possession of immovable properties to the parties
concerned, the trial Court cannot pass orders directing Court commissioner to
deliver possession of property to parties concerned upon preparing report.
This is not a method which is contemplated and guidelines laid down by
Hon‟ble Apex Court. After submission of report by Court Commissioner,
parties are to be given an opportunity to raise objection and thereafter final
decree proceedings can be concluded after hearing parties. Therefore,
directions to Court Commissioner to deliver possession to parties concern
cannot be issued in the light of a decision reported in 2009 AIR (SC) 2863 in
between Shub Karan Bubna @ Shub Karan Prasad Bub Vs Sita Saran
Bubna and others rendered by Hon‟ble Supreme Court of India, wherein it is
held that in case of delivery of possession of house property with meets and
bounds to effect partition, the Court has to further take up proceedings after
submission of the reports by the Commissioner by way of hearing the parties.
The said guidelines were relied upon in a decision reported in 2016 LawSuit
(Bom) 1768 in between Latabai Subhashrao Dahake Vs Jayanth Punjaji
Takarkhede rendered by Hon‟ble High Court of Bombay (Nagpur Bench).
Consequent on the amendment of Section 75, new Rules 10-A to
10-C are being inserted to provide for the issue of commissions for
scientific investigation, performance of a ministerial act, or sale of
movable property.
Before issuing any commission under Order XXVI C.P.C., the court may
order such sum (if any) as it thinks reasonable for the expenses of the
commission to be, within a time to be fixed, paid into court by the party at
whose instance or for whose benefit the commission is issued.
Powers of Commissioner was envisaged in Order XXVI Rule 16 C.P.C.
New Rule 16-A is intended to provide that where a question put to a witness is
objected to in proceedings before the commissioner, the commissioner shall
take down the question, the answer, the objections and the name of the
person so objecting. Any such answer can be read as evidence in the suit only
by the order of the court to that effect. Court to fix a time for return of
commission as per the provisions under Rule 18-B C.P.C. New Rule 18-A
provides that the provisions with regard to the issue of commission shall
apply to execution proceedings as well.
 39

APPOINTMENT OF ADVOCATE–COMMISSIONER
Paper presented by
Sri M. Subba Rao,
Prl. Junior Civil Judge,
Nuzvid

The appointment of advocate commissioner can axiomatically be

understood by going into the few lines of Interlocutory applications:
What is an Interlocutory Application:-
There is no specific definition given in the Civil Procedure Code to the
phrase “Interlocutory application”.
Generally, an interlocutory application would mean an application
made to the Court in any suit, appeal or other legal proceeding that was
already instituted in such court, other than an application for execution of a
decree or order or for review of Judgment or for leave to appeal. Sec.141 CPC
makes a reference to 'Miscellaneous proceedings', explaining that the method
provided in the Code in regard to a suit shall be followed as far as it can be
made applicable, in all proceedings in any court of civil jurisdiction, including
the proceedings under order 9 but does not comprise any proceedings under
Art 226 of Constitution of India.
The Civil Rule of Practice, Rule 2(k) had defined the expression
“interlocutory application” to mean “ an application to the court in any suit,
appeal or proceedings already instituted in such court, other than a proceeding
for execution of a decree or order”. It is interesting to note that the word:
application” is defined in Rule 2(c) that includes execution application,
execution petition and interlocutory application, both written and oral. A
comprehensive reading of the definition as above would unveil that
interlocutory application is one species of a broader term of' application', but
the execution application is not an interlocutory application. For the purpose
of applications in the execution, the definitions are separately given in the
code.
Rule 56: Every application which does not pray for a substantive order
but prays merely that any other application may be dismissed, and every
application which prays for an order which out to be applied for on the day
fixed for the hearing of any suit, appeal, or matter, may be rejected with
Costs.
“Interlocutory” means not that decides the cause but which only
settles some intervening matter relating to the cause. After the suit is
instituted by the plaintiff and before it is finally disposed off, the court may
make interlocutory orders as may appear to the court to be just and
 40

convenient. The power to grant Interlocutory orders can be traced to Section

94 of C.P.C. Section 94 summarizes general powers of a civil court in regard
to different types of Interlocutory orders. The detailed procedure has been set
out in the I Schedule of the C.P.C which deals with Orders and Rules.
Interlocutory orders may take diverse shapes depending upon the
constraint of the respective parties during the pendency of the suit.
Applications for appointment of Commissioner or Receiver, Temporary
Injunctions, payment into court, recording satisfaction of decree, insisting
security for costs, etc. Out of these assorted interlocutory orders that can be
passed, the court is called upon to make a decision on questions regarding
grant of temporary injunction, receivers and commissions more frequently
than other interim orders. Now the word commission is discussed in a
broader and wider spectrum:
COMMISSION
The concept of „Commission‟ is an important subject
matter in the branch of CPC. Commission is an impartial person who is
appointed by the Court and act as an agent of the Judge. The power of the
Court to issued Commission by the Court for doing full and complete Justice
between the parties. The commissioner is the extended form or extended arm
of the court for deciding the matter in dispute by full-fledged understand of
practical view.
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. 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.
 41

LEGAL PROVISIONS FOR APPOINTMENT OF COMMISSIONERS:

S. No. Purpose
1 General Provisions as to
appointment of Commissioner
2 Commission for local inspection
3 Commission to record evidence
4 Commission for Scientific
Investigation
5 Commission to perform Ministerial
Acts
6 Commission of sale of movable
property
7 Commission to examine Accounts
8 Commission to make partition
9 Issuing of commission by Hon‟ble
High Court
Provision
Sec.75-78 of CPC Rule, 134 to 141
of Civil Rules of Practice
Order XXVI- Rule 9, 10, 15, 18B of
CPC
Order XXVI Rule 1-8, 16, 16A, 17,
18 of CPC
Order 26 Rule 10 A of CPC
Order 26, Rule 10 B of CPC
Order XXVI, Rule 10C, Order
XXXIX Rule 6 and 8 of CPC
Rule 261 and 264 of Civil Rules of
practice
Order XXVI, Rule 11, 15, 16 and
17 of CPC
Rule 179-184 of Civil Rules of
Practice
Order XXVI, Rule 13, 14 and
Order XX, Rule 18 of CPC
Order XXVI, Rule 19 of CPC

APPOINTMENT OF COMMISSIONER BY THE HIGH COURT:

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.
Section 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.
 42

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.
To examine any Person:
Section (76 – 78), order (XXVI) 26, Rules (1–8) of the Code of Civil Procedure
deals with the Commission to examine of witness. The court may issue a
commission for the examination on interrogatories or otherwise of any person
in the following circumstances
a. If the person to be examined as a witness reside within the local
limits of the court‟s Jurisdiction;
b. If he resides beyond the local limits of the Jurisdiction of the court,
orc. If he is about to leave the Jurisdiction of the court.
i. Cases in which Court may issue commission to examine witness
Any Court may in any suit issue a commission for the examination on
interrogatories or otherwise of any person resident within the local limits of its
jurisdiction who is exempted under this Code from attending the Court or who
is from sickness or infirmity unable to attend it: Provided that a commission
for examination on interrogatories shall not be issued unless the Court, for
reasons to be recorded, thinks it necessary so to do. Explanation. The Court
may, for the purpose of this rule, accept a certificate purporting to be signed
by a registered medical practitioner as evidence of the sickness or infirmity of
any person, without calling the medical, practitioner as a witness.
Order for commission an order for the issue of a commission for the
examination of a witness may be made by the Court either of its own motion
or on the application, supported by affidavit or otherwise, of any party to the
suit or of the witness to be examined. Where witness resides within Court's
jurisdiction commission for the examination of a person who resides within
the local limits of the jurisdiction of the Court issuing the same may be issued
to any person whom the Court thinks fit to execute it. Persons for whose
examination commission may issue
(1) Any Court may in any suit issue a commission for the examination on
interrogatories or otherwise of-(a) any person resident beyond the local limits
of its jurisdiction;(b) any person who is about to leave such limits before the
date on which he is required to be examined in Court; and (c) any person in
the service of the Government who cannot in the opinion of the Court, attend
without detriment to the public service; Provided that where, under rule 19 of
 43

Order XVI, a person cannot be ordered to attend the court in person, a

commission shall be issued for his examination if his evidence is considered
necessary in the interests of justice: Provided further that a commission for
examination of such person on interrogatories shall not be issued unless the
Court, for reasons to be recorded, thinks it necessary so to do.
(2) Such commission may be issued to any Court, not being a High Court,
within the local limits of whose jurisdiction such person resides, or to any
pleader or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether
the commission shall be returned to itself or to any subordinate Court. Court
to examine witness pursuant to Commission Every Court receiving a
commission for the examination of any person shall examine him or cause
him to be examined pursuant thereto.
To make a local investigation
The court may, in any suit, issue a commission to such person as it
thinks fit directing him to make local investigation.
Commissions to make local investigations
In any suit in which the Court deems a local investigation to be
requisite or proper or 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.
Procedure of Commissioner
a. 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
b. Report and depositions 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 the suit may examine the Commissioner
personally in open Court touching any 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.
c. 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
 44

think fit. Commissions for scientific investigation, performance of ministerial

act and sale of movable property.
10A. Commission for scientific investigations
(1) Where any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the Court, be conveniently
conducted before the Court, the Court may, if it thinks it necessary or
expedient in the interests of justice so to do, issue a commission to such
person as it thinks fit, directing him to inquire into such question and report
thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in
relation to a Commissioner appointed under this rule as they apply in relation
to a Commissioner pointed under rule 9.10B. Commission for performance
of a ministerial act Where any question arising in a suit involves the
performance of any ministerial act which cannot, in the opinion of the Court,
be conveniently performed before the Court, the Court may, if, for reasons to
be recorded, it is of opinion that it is necessary or expedient in the interests of
justice so to do, issue a commission to such person as it thinks fit, directing
him to perform that ministerial act and report thereon to the Court. The
provisions of rule 10 of this Order shall apply in relation to a Commissioner
appointed under this rule as they apply in relation to a Commissioner
appointed under rule9.
10C. Commission for the sale of movable property
(1) Where, in any suit, it becomes necessary to sell any movable property
which is in the custody of the Court pending the determination of the suit and
which cannot be conveniently preserved, the Court may, if, for reasons to be
recorded, it is of opinion that it is necessary or expedient in the interests of
justice so to do, issue a commission to such person as it thinks fit, directing
him to conduct such sale and report thereon to the Court
2) The provisions of rule 10 of this Order shall apply in relation to a
Commissioner appointed under this rule as they apply in relation to a
Commissioner appointed under rule9.
(3) Every such sale shall be held, as far as may be, in accordance with the
procedure prescribed for the sale of movable property in execution of a decree.
To examine or adjust accounts
In any suit in which an examination or adjustment of accounts is
necessary, the court may issue a commission to such person as it thinks fit
directing him to make such examination or adjustment.
 45

Commissions to examine accounts

Commission to examine or adjust accounts In any suit in which an
examination or adjustment of the accounts is necessary, the Court may issue
a commission to such person as it thinks fit directing him to make such
examination or adjustment.
Court to give Commissioner necessary instructions:
(1) The Court shall furnish the Commissioner with such part of the
proceedings and such instructions as appear necessary, and the instructions
shall distinctly specify whether the Commissioner is merely to transmit the
proceedings which he may hold on the inquiry, or also to report his own
opinion on the point referred for his examination.
(2) Proceedings and report to be evidence. Court may direct further inquiry-
The proceedings and report (if any) of the Commissioner shall be evidence in
the suit, but where the Court has reason to be dissatisfied with them, it may
direct such further inquiry as it shall think fit.
To make a Partition
Where a preliminary decree for partition of immovable property
has been passed, the court may issue a commission to such person as it
thinks fit to make a partition or separation according to the rights as declared
in such decree.
Procedure of Commissioner:
(1) The Commissioner shall, after such inquiry as may be necessary, divide
the property into as many shares as may be directly by the order under which
the commission was issued, and shall allot such shares to the parties, and
may, if authorized thereto by the said order, award sums to be paid for the
purpose of equalizing the value of the shares.
(2) The commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one person
and they cannot agree) shall prepare and sign separate reports appointing the
share of each party and distinguishing each share (if so directed by the said
order) by metes and bounds. Such report or reports shall be annexed to the
commission and transmitted to Court; and the Court, after hearing any
objections which the parties may make to the report or reports, shall confirm,
vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a
decree in accordance with the same as confirmed or varied; but where the
Court sets aside the report or reports it shall either issue a new commission
or make such other order as it shall think fit.
 46

To make a scientific investigation

Where any question arising in a suit involves any scientific
investigation the court may issue Commission to such person as it thinks fit,
directing him to enquire into such question and report thereon to the court.
To conduct for sale
Where, in any suit, it becomes necessary to sell any movable
property which is in the custody of the Court, pending the determination of
the suit and which cannot be conveniently preserved, the court may, issue a
commission to such person as it thinks fit, directing him to conduct such sale
and resort thereon to the court.
General provisions
Expenses of commission to be paid into Court Before issuing any
commission under this Order, the Court may order such sum (if any) as it
thinks reasonable for the expenses of the commission to be, within a time to
be fixed, paid into Court by the party at whose instance or for whose benefit
the commission is issued.16. Powers of Commissioners Any Commissioner
appointed under this Order may, unless otherwise directed by the order of
appointment, -
a) Examine the parties themselves and any witness whom they or any of them
may produce, and any other person whom the Commissioner thinks proper to
call upon to give evidence in, the matter referred to him;
b) Call for and examine documents and other things relevant to the subject of
inquiry;
c) At any reasonable time enter upon or into any land or building mentioned
in the order.4
16A. Questions objected to before the Commissioner
(1) Where any question put to a witness is objected to by a party or his
pleader in proceedings before a Commissioner appointed under this
Order, the Commissioner shall take down the question, the answer, the
objections and the name of the party or, as the case may be, the pleader so
objecting Provided that. the Commissioner shall not take down the answer to
a question which is objected to on the ground of privilege but may continue
with the examination of the witness, leaving the party to get the question of
privilege decided by the Court, and, where the Court decides that there is no
question of privilege, the witness may be recalled by the Commissioner and
examined by him or the witness may be examined by the Court with regard
to the question which was objected to on the ground of privilege.(2) No answer
taken down under sub-rule (1) shall be read as evidence in the suit
except by the order of the Court. Attendance and examination of witnesses
 47

before Commissioner(1) The provisions of this Code relating to the

summoning, attendance and examination of witnesses, and to
the remuneration of, and penalties to be imposed upon, witnesses, shall apply
to persons required to give evidence or to produce documents under this
Order whether the commission in execution of which they are so required
has been issued by a Court situate within or by a Court situate beyond the
limits of 7 and for the purposes of this rule the Commissioner shall be
deemed to be a Civil Court :4[Provided that when the Commissioner is not a
Judge of a Civil Court he shall not be competent to impose penalties; but
such penalties may be imposed on the application of such Commissioner by
the Court by which the commission was issued.
(2) A Commissioner may apply to any Court (not being a High Court) within
the local limits or whose jurisdiction a witness resides for the issue of any
process which he may find it necessary to issue to or against such witness,
and such Court may, in its discretion, issue such process as it considers
reasonable and proper.18. Parties to appear before Commissioner.
(1) Where a commission is issued under this Order, the Court shall direct that
the parties to the suit shall appear before the Commissioner in person or
by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may
proceed in their absence.4[18A. Application of Order to execution proceedings
The provisions of this Order shall apply, so far as may be, to proceedings in
execution of decree or order.18B. Court to fix a time for return of commission
The Court issuing a commission shall fix a date on or before which the
commission shall be returned to it. after execution, and the date so fixed
shall not be extended except where the Court, for reasons to be recorded,
is satisfied that there is sufficient cause for extending the date][Commissions
issued at the instance of foreign Tribunals19. Cases in which High
Court may issue commission to examine witness
(1) If a High Court is satisfied-
(a) that a foreign court situated in a foreign country wishes to obtain the
evidence of witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court's appellate
jurisdiction, it may, subject to the provisions of rule 20, issue a commission
for the examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b) and (c)
of sub-rule(1)-(a) by a certificate signed by the consular officer of the foreign
country of the highest rank in India and transmitted to the High Court
 48

through the Central Government, or(b) by a letter of request issued by the

foreign Court and transmitted to the High Court through the Central
Government, or(c) by a letter of request issued by the foreign Court and
produced before the High Court by a party to the proceeding. Application for
issue of commission The High Court may issue a commission under rule 19-
(a) upon application by a party to the proceeding before the foreign court, or(b)
upon an application by a law officer of the State Government acting under
instructions from the State Government. To whom commission may be issued
commission under rule 19 may be issued to any Court within the local limits
of whose jurisdiction the witness resides, or the witness resides within
the local limits of the ordinary original civil jurisdiction of the High Court, to
any person whom the Court thinks fit to execute the commission. Issue,
execution and return of commissions, and transmission of evidence to foreign
Court The provisions of rules 6, 15, 13[Sub-rule (1) of rule 16A, 17, 18 and
18B] of this Order in so far as they are applicable shall apply to the issue,
execution and return of such commissions, and when any such commission
has been duly executed it shall be returned, together with the evidence taken
under it, to the High Court, which shall forward it to the Central Government,
along with the letter of request for transmission to the foreign court
POWERS OF COMMISSIONER :
He may:
(a) examine the parties and witnesses;
(b) call for and examine documents; and
(c)at any reasonable time enter upon or into any land or building mentioned
in the order.
Questions objected to before the commissioner
Where any question put to a witness is objected to by a party or
his pleader in proceedings before a commissioner appointed under Order
XXVI, the commissioner shall take down the question, the answer, the
objections and the name of the party or, as the case may be, the pleader so
objecting: Provided that the commissioner shall not take down the answer to a
question which is objected to on the ground of privilege but may continue
with the examination of the witness leaving the party to get the question of
privilege decided by the court, and where the court decides that there is no
question of privilege, the witness may be recalled by the commissioner and
examined by him or the witness may be examined by the court with regard to
the question which was objected to on the ground of privilege. No answer
taken down under sub-rule (1) shall be read as evidence in the suit except by
the order of the court. The provisions of the Code governing attendance and
 49

examination of witnesses shall also apply to persons required to give evidence

or to produce documents before the commissioner. When the commissioner is
not a judge of a civil court, he shall not be competent to impose penalties; but
such penalties may be imposed on the application of such commissioner by
the court by which the commission was issued. Where the parties do not
appear before the commissioner, he may proceed ex parte. The court issuing a
commission shall fix a date on or before which the commission shall be
returned to it after execution, and the date so fixed shall not be extended
except where the court, for reasons to be recorded, is satisfied that there is
sufficient cause for extending the date.
The provisions of Order XXVI shall apply, so far as may be, to proceedings in
execution of a decree or order
VARIOUS RULINGS ON THE LAW OF APPOINTMENT OF ADVOCATE
COMMISSION:
1) Requirements to be tested in appointing advocate commission:
In Sarala Jain and others.Vs. Sangu Gangadhar reported in 2016 Law
Suit(Hyd) 33, 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.
2) 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
 50

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
3) 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 penalize 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.
4) 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
 51

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.
5) 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, 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.
6) 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.
7) 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
 52

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.”
In Pamula Narsaiah And Anr. vs Pamula Murali And Ors, reported in
2002 (1) ALD 393= 2001 (6) ALT 385, it was observed as follows: “ 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.”
8) 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.
Whether the Execution Court has power to appoint an Advocate-
Commissioner ?
In Gurram Anantha Reddy vs Katla Sayanna, reported in 2015
LawSuit (Hyd) 334 it was held as ―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. 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.
9. Advocate Commissioner cannot be used for fact finding purposes
and as such, the orders 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.
 53

10. 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 action
are not take, 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 affected party‟s right, which is
enshrined in the Act itself.
11) 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.1989 of 2012 and
batch, dt:22-04-2014, observed as follows.”….
This indicates that the Advocate Commissioner report Ex.A21 is
factually incorrect and is a false report prepared by her to help the
Defendants to lay 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.
12. 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 out, as per decision of Hon‟ble Supreme Court in
Lekh Ra 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 biding 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(1) M.L.J.319, held that under Order 26, Rule 10(2)
C.P.C the report of the Commissioner is evidence in the sit and forms part of
 54

the records. In Veppanathar alias karuppannam and Anr V.Laiappan

reported in 2000-1 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.
13. Introducing additional evidence – when?
In a decision reported in Penta Urmila and others Vs.Karukola
Kumaraswamy, 2005(2) ALD 130), the court in paragraph 6 has held as
follows: Ina 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 Commission files a report, as directed by Appellate
Court with the assistance of the Madal 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.
14. 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) CCC416 (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 Order 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 to 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
 55

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 unauthorizedly 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 Apparao (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
Paradesh High Court in the case between Mallikarjuna Srinivasa Gupta Vs
K.Sheshirekha, 2006 (3) ALD 362 in 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.2366 of 2007, dt:01-
04-2011 observing the dicta in the rulings referred to 2006(3) ALD 362 (supra)
and 2010 (4) ALD 198 (supra), directed the lower court to appoint an Advocate
Commissioner and if there are some latches on the part of one party, the
court may impose reasonable costs.
15) 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
 56

upon the matter in issue, relating to the main case as well as the facts leading
to the dispute.
16) Commissions in Family Court proceedings:
“It has been laid down again and again that one should be very
careful before permitting the issue of a commission which will deprive the
other side of the great advantage of having a witness cross-examined before
the face of the Court itself.” observed Orders J. in Sreenivasa Aiyyangar v.
Ranga Aiyangar (AIR 1927 Madras 524). The above observation still holds
good in marital disputes before a Family Court. Recently Hon‟ble Judge V.
CHITAMBARESH & Hon’ble Judge SATHISH NINAN, JJ. OP(FC) No.512 of
2017 decided on 4th day of April, 2018 :Rule 4 of Order XVIII and Rule 4-
A of Order XXVI of the CPC inserted by Act 46 of 1999 (with effect from
1.7.2002) enable the Court to issue commission in any suit or proceedings for
the examination of witnesses. The legality of the amendment to the CPC has
been upheld in Salem Advocate Bar Association's cases reported in (2003) 1
SCC 49 and (2005) 6 SCC 344. Either all the evidence can be recorded in
Court or by the Advocate Commissioner or partly by the Court and partly by
the Advocate Commissioner as the Court directs. The Court has to apply its
mind to the facts, nature of allegations, nature of evidence and importance of
the particular witness in order to determine as to how the examination should
proceed. The power is to be exercised with great circumspection and no hard
and fast rule has been laid down to control the discretion of the Court to
appoint an Advocate Commissioner to record the evidence. The Judge of the
Family Court is so given the power to record only a memorandum of the
substance of what the witness deposes only because he alone can remove the
chaff from the grain in assessing a witness. That forensic skill of the Judge
cannot be usurped by the Advocate Commissioner even though he can record
remarks regarding the demeanor of the witnesses under Rule 4(4) of Order
XVIII of the CPC Marital disputes have a personal touch depending on the
character of the warring spouses and their social background which the
Judge of the Family Court need to assess first hand. It is trite law that the
demeanors of the witnesses have to be watched before assessing their
credibility for the Court to rest its conclusion on their evidence in the verdict.
The life and future of the parties in a marital dispute are at stake and the
resolution of such disputes cannot be treated on par with adjudication of
other disputes by the Civil Court. It is of course open to the parties to waive
their right to have the witnesses examined before the face of the Court and
have the entire deposition recorded verbatim by the Advocate Commissioner
appointed The Family Court shall have the evidence of the witnesses recorded
 57

by the Advocate Commissioner appointed only if either parties to the lis have
no objection to adopt such course of procedure
CONCLUSION:
The basic test for appointing advocate commission is “elucidating any
matter in dispute”. Appointing of commission should assist the court in
arriving at just full conclusion. The duty of the court shall not be encroached
by advocate commission. Advocate commission comes under the realm of
“judicial authority” but not “Adjudicating authority” the power of
adjudication is always vested in Court only. Any person, in the view of the
court is competent do a particular thing can be appointed as Commission.
The object of the duty entrusted shall not constitute “Pre-trial decree”. The
functionaries of advocate commission shall always be in the lines of
assistance in dispensation of Justice.
 58

APPOINTMENT OF ADVOCATE COMMISSIONER

Paper presented by

Sri Gubba Prabhakar,

Addl. Junior Civil Judge,
Nandigama.

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.

Appointment of Commissioner in terms of part III i.e. matter “Incidental

proceedings” of CPC is provided by Section 75 of the Code. It is provided

therein that 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.”

Appointment of Advocate Commissioner:-

In Sarala Jain and others v. Sangu Gangadhar, in view of the law laid down

by the Apex Court in Mohd. Mehtab Khan‟s case, (2013 (3) ALD 64 (SC) =

2013 (3) ALT 31.1 (DN SC)), His Lordship M. Satyanarayana Murthy, J, held

that appointing advocate commissioner by the trial Court for the purpose of

demarcating scheduled property and fix boundary stones to the property of

the respondent 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

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.
 59

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 judgements 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 if not

produced, it can penalize 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 and others vs. Eswaran and 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) MLJ391, His Lordship AR. Ramalingam J has held that Advocate –
 60

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 and his report is filed, it can be

questioned by the other side by filing objections as the dispute in the suit 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 Kuttiyappann 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 and another vs

Lakshmiammal and others 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 Zackaroa 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
 61

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 to 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 and 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 staircase 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

 62

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 another 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 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 C.A. 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 is

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 another vs Pamula Murali and others, 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
 63

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 others (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 on Lekh

Raj V. Muni Lal and others (2001) 2 Supreme Court Cess 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. Shanmygham Mudaliar and another

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 Karupannam and another v. Laiappan reported

in 2000-Law Weekly 893 in which the Hon‟ble Madras High Court has held

thus :- “Under Oder 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
 64

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 other vs. Karukola Kumarasamy,

(2005 (I) ALT 811 = 2005 (2) ALD 130), the Court in paragraph 6 has held as

follows : „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 if 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 = n1958 ALT 792 and 1988 (1) ALT 353 and observing the object of

local investigation under O, XXVI, R 9 of the Code which cannot be littled in

Bandaru Mutyalu and another vs Palli Appalaraju, 2013 (6) ALT 26 (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 and to demarcate the suit

schedule property with the help of the Surveyor.

 65

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 Podugu Appa Rao (died) and others vs.

Grandhi Sathiraju (died) and others reported in 2009 (2) ALT 15 = 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 (4) ALT 162 = 2006

(3) ALD 362 in which case, a suit was filed for declaration therein encroached

a portion of the suit. 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, 2011 (4) ALT 541 observing the dicta in the

rulings referred to 2006 (4) ALT 162 (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.

 66

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

The Hon‟ble Supreme Court in Gurunath Manohar Pavaskar and others vs.

Nagesh Sidappa 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 2015 (4) ALT 302, 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,

the provisions or Order 26 of Ode 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, 2011 (4) ALT 541, 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.
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When an application for appointment of advocate commissioner is filed, such

application must be divided without any delay. As was held in P. Pedda

Saidaiah and other 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 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 9of 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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Paper presented by
Sri V.Krishna Murthy,
Special Magistrate,
Nuzvid.

Under Section 75 of code of civil procedure (CPC) the court has been
conferred with the power to issue commission for incidental proceedings like
examine any person, to make local investigation, to examine or adjust
accounts, to make partition or hold a scientific, technical or expert
investigation, to conduct sale of property or perform any ministerial act.
However, such power is not absolute and is subject to conditions or
limitations.
Apart from the said statutory provision, the court can appoint an
Advocate- Commissioner under order 26 Rule 9 for the purpose of elucidating
or any matter in dispute.
Order 26 Rules 1 to 22 deals with appointment of Advocate-
Commissioner for different purposes.
Advocate -Commissioner is a court officer who aid the court in resolving
the real controversies arising out of civil suits in various circumstances. The
reports submitted by the commissioner would be of immense help to the
parties in the suit as well as to the court to know the cause of dispute or to
record the evidence of witnesses who can not stand as witness in a court of
law for various reasons.
Case Law
1. A witness can be examined on Commission irrespective of the distance
within which he resides from place of court.
2006(4) ACT 3
T.Syed Basha V.APSRTC represented by Its Regional Manager,
Kurnool.
2. On Petitions for temporary injunction, the factum of possession be
decided only on the basis of evidence advanced on either side which is further
elucidated or explained by the report of Commissioner-Appointment of
Commissioners is not permissable for collecting evidence.
Jayalakshmi Constructions
Vs
Nawab Behboob AliKhan
2006 (4) ACT 162

3. Commissioner not expected to investigate into matters not assigned to

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him. Report on matters not entrusted to him is devoid of authority such a

report can not be taken into consideration even if no objection are filed by
adverse party against contents of Commissioner's report.
Veeram Reddy Nagabhushana Rao
Vs
State of Andhra Pradesh
1998(1) L.S.829.
4. Commissioner cannot be appointed for ascertaining as to who was in
possession of the suit property on the date of suit. It is the duty of the court
to decide the same on the basis of oral and documentary evidence that may be
addressed by parties during trial of suit. Such a function can not be entrusted
to Commissioner.
1998(2) APCJ. 216
Bangar Ramulu and another
Vs
Guder Narendar Reddy.
5.Sensitive issues like cruelty, adultery desertion or custody of children can
be better adjudicated only when the witnesses are cross-examined before face
of the court itself.
The High Court of Kerala has held that evidence in matrimonial cases
has to be recorded by the court itself, and that the Advocate-Commissioner
can be appointed to record evidence only if the parties have no objection to
such a procedure.
The court agreed that Rule-4 of Order XVIII and Rule 4 A of Order XXVI
inserted in the C.P.C. by the 2002 amendment permitted recording of
evidence by the Advocate-Commissioner appointed by the court, and the
amendment was upheld by the Supreme Court in Salem Advocate Bar
Association's cases.
However, the court also noted that proceedings in the family court stood
at different footing when compared to ordinary civil disputes. As per section
10 of the family courts Act provisions of the CPC are not as such applicable to
family cases, and the court can devise Its own procedure.
Material disputes have a personal touch depending upon the character
of the warring spouses and their social background, which the Judge of the
family court need to assess fist hand. It is trait law that the demeanour of the
witnesses have to be watched before assessing their credibility for the court to
rest its conclusion on their evidence in the verdict.

6. Advocate-Commissioner can not be used for fact finding purposes and

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as such the order passed by the court below is not sustainable under law.
Devadas Vs. Duraisingh
2002(3) CTC 748.
7. When there is a 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.
V.R.Reddy Vs. M.Y. Reddy and others,
2010 (4) ACD 198.
An advocate-commissioner can be appointed to seize vehicle according
to facts and circumstances of each case.
In a case R. Joseph Miranda Vs. Dhandapani Finance Private Limited
an Advocate-Commissioner was appointed to seize vehicle.
9. Whenever there is a dispute regarding boundaries or physical features
of the property or any allegation of encroachment as narrated by one party
and disputed by another party, the facts have to be physically verified,
because the recitals of the documents may not reveal the true facts and
measuring of land on the spot by surveyor may become necessary. It is always
better if the parties are allowed to advice 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 for effective adjudication of matter, the
report of Advocate-Commissioner will be useful to the court as well as parties.
2010 (4) ACD 198
Shiak Jareena Kasan
Vs
Patan Sadab Khan and others.
In the backdrop of above decisions appointment of Advocate-
Commissioner is necessary to resolve ticklish issues in the suits.