1. In a Suit for injunction, there is no absolute bar on appointment of Commissioner. It
is not the business of the Court to collect evidence in favour of one party.
2. Advocate-Commissioner should not be appointed to gather evidence to prove the
case of parties.
3. Prior notice in case of Appointment of advocate Commissioner : Without notice:
Though Order 26 Rule 9 CPC per does not envisage notice to the opposite party, the
order containing unilateral direction without notice to the other side is perceived as
somewhat unusual and contrary to the convention and practice for, it cannot be said
that an application for appointment of an Advocate-Commissioner for the said purpose
does not broke delay in issuing notice to the other side and hearing them.
4. Exparte orders in Appointment of advocate Commissioner:- Even ex-parte and
without issuing notice to the other side, an Advocate Commissioner can be appointed.
5. When appointment of commissioner becomes Pre-trial decree:- When the plaintiff
sought for Appointment of advocate Commissioner to survey schedule property with
the help of Surveyor and fix boundary stones to his land, Appointment of advocate
commissioner by trial court for demarcating schedule property and to fix boundary
stones to the land of respondents amounts to granting pre-trial decree.
6. Appointment of Advocate-Commissioner for the second time. Unless there is
ambiguity in the earlier report or not executed as per order of court, second time
Advocate-Commissioner can be appointed. When the court is not satisfied can set
aside report by recording reasons and then appoint new advocate commissioner.
However, the Court has discretion to appoint second commissioner depending on
facts and circumstances of the case before it. But the discretion of court must be
judicious 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.
7. New Advocate Commissioner can be appointed in a suit schedule land with the
assistance of Mandal Surveyor or the Assistant Director of Survey and Settlement,
Held, the burden is on the defendant to prove that the property which the petitioner is
claiming is different from the property based on the boundaries. Appointment of an
Advocate-Commissioner to note down the physical features. Orders in the nature of
appointment of an Advocate-Commissioner to note down the physical features and
boundaries of the disputed properties are incidental and complimentary in nature and
assist the Court in arriving at a just decision in the is unlike supplementary orders.
8. 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.