Court holds that once commissioner's report is admitted as evidence, it forms part of the record and can only be challenged by adducing other evidence; setting aside report post-evidence closure is procedural irregularity.
In a landmark judgment dated September 9, 2026, the Kerala High Court, presided over by Justice Easwaran S., delivered a significant ruling in the case of S. Abdul Razzak v. C.B. Suraja Devi and Ors., emphasizing the procedural sanctity surrounding the report of an Advocate Commissioner under the Code of Civil Procedure (CPC), 1908.
The dispute arose from a civil suit (OS No.6/1997) concerning declaration of title and injunction related to property boundaries and a disputed pathway. Following a remand by the High Court directing the trial court to appoint a Commissioner to measure the properties and pathway in question, an Advocate Commissioner was appointed and his report, along with a surveyor's plan, was submitted and accepted as evidence in the trial court.
Subsequently, the defendants sought to set aside the Advocate Commissioner's report, alleging flaws in the measurements and methodology, including the absence of reference to survey stones and proper survey records. Despite objections from the plaintiff that the application to set aside the report was belated and improper, the trial court allowed the application after the closure of evidence, setting aside the commissioner's report.
The plaintiff challenged this order before the Kerala High Court through an Original Petition. The High Court meticulously examined the legal position regarding the powers of the trial court to set aside a commissioner's report after it has been admitted as evidence. Citing multiple precedents, including decisions from Kerala and other High Courts, the court held that while the report of the Advocate Commissioner is not sacrosanct or binding, once admitted into evidence, it becomes part of the record. The proper way to challenge such a report is not by seeking to set it aside after closure of evidence but by adducing other cogent evidence to disprove it.
The High Court criticized the trial court for entertaining and allowing the application to set aside the commissioner's report after evidence was closed, terming it a "serious procedural irregularity." The court underscored that such power under Order XXVI Rule 10(3) of the CPC can only be exercised before the report is admitted into evidence.
Furthermore, the High Court found that the defendants' objections regarding the measurement procedures were afterthoughts, especially since no objections were raised during the actual measurement process, and the defendants had earlier accepted the commissioner's report when filing a counterclaim. The court reiterated that the remand order was specific and closed in nature, directing the commissioner to measure the properties and pathway based on title documents with the assistance of a surveyor, without any mandate to strictly adhere to survey records.
In its final order, the Kerala High Court set aside the trial court's orders that nullified the commissioner's report, reinstated the report as evidence, and directed the trial court to proceed with the suit expeditiously, uninfluenced by the disallowed observations. The court also mandated the disposal of the suit within two months from the date of receipt of the judgment.
This judgment reinforces the procedural integrity in civil trials concerning the handling of commissioner's reports, emphasizing that such reports, once accepted as evidence, cannot be lightly discarded and must be challenged through proper evidentiary means rather than procedural maneuvers post closure of evidence.
Bottom Line:
Civil Procedure - Report of an Advocate Commissioner - Once the report of the commissioner is received in evidence, it becomes part of the record, and it is not permissible for the trial court to set aside the same after the closure of evidence. The report is only a piece of evidence, and parties may disprove its findings with other cogent evidence. Procedural irregularity occurs if the trial court entertains such an application after evidence is closed.
Statutory provision(s):
Code of Civil Procedure, 1908 - Order XXVI Rule 10(3)
S. Abdul Razzak v. C.B. Suraja Devi, (Kerala) : Law Finder Doc Id # 2980684
