The Report of the First Commissioner is on the record.
The petitioner applied for another Commissioner on the
ground that the sketch earlier made was suspended by the
High court in a writ petition. It is held in Koduru Sesha
Reddy Vs., Gottigundala Venkata Ramireddy and
others 2006 (1) ALD 372 that before appointment of a
second Advocate-Commissioner, the Court should record its
dissatisfaction about the report submitted by the first
Commissioner, the object being to avoid conflicting reports
before the Court. This view is relied upon with approval. The
High Court held in this case that mere suspension of a sketch
by the Writ Court does not render the sketch irrelevant and if
any fresh inspection of the disputed properties by the
Advocate-Commissioner becomes necessary, it is always
open to the party aggrieved to approach the trial Court with a
request to direct the first Commissioner himself to make a
local inspection again debors the sketch in question. If the
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party otherwise seeks to discredit the first AdvocateCommissioner’s report in total and have a second AdvocateCommissioner for making local inspection, then invariably he
should persuade the trial Court to conclude about the
unacceptability of the report of the first AdvocateCommissioner with reference to the objections raised by him
against the said report or any other relevant considerations
that he may bring to the notice of the trial Court. It is
categorically held that till the report of first Commissioner is
scraped, a second Commissioner for the same purpose
cannot be appointed by the Court as such practice will be
prone for inconsistency.
Appointment of a second Commissioner in a suit for
permanent injunction was sought for by the plaintiff. In the
alternative, a redirection to the earlier Commissioner was also
sought for directing the Commissioner to inspect suit site or
to file fresh report or scrap report already filed. The trial
Court redirected the Commissioner to inspect suit site and to
file fresh report on the ground that there are certain
discrepancies in the earlier report of the Commissioner. In
this situation, the High Court has assertively held that the
appointment of Commissioner for second time can be made
only when the Court is not satisfied with report of earlier
Commissioner as contemplated under Order 26 Rule 10(3)
CPC. For that, the Court sh;all invariably record its reasons
about its dissatisfaction over the proceedings of the
Commissioner or as to why his report is not satisfactory.
Merely because the party made averments in the affidavit,
the Court cannot appoint a second Commissioner was held in
R. Vijayadu Vs., N. Ramachandrareddy 2004 (5) ALD
486.
A Commissioner was appointed to evaluate mesne profit.
He filed report but the Court found that the said report is
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incomplete with regard to several matters. Court observed
that the services of an experienced advocate are necessary
to assess the mesne profit correctly and then appointed
another Commissioner for the purpose again, directing him to
execute the warrant. The challenge to the correctness of that
order was on the ground that the reasons for appointment of
a second Commissioner given by the trial Court are not
proper or sufficient and that there is no finding recorded that
the report of the Commissioner is unsatisfactory and that the
Court has not examined the legal implication of appointing
the Second Commissioner by virtue of Order 26 Rule 10 CPC
whereby, the question would be whether the report already
submitted by the Commissioner along with the statements of
the witnesses should exist or by weighed out. The High Court
held that the said order suffers from many illegalities and
infirmities in addition to exercise of the jurisdiction in excess
of what is contemplated under Order 26 Rule 10 CPC. It was
also observed that there is no provision under Order XXVI of
the Code for appointing more than one Commissioner or to
reject the report of the Commissioner and the evidence
without any justification. The law in regard to the
appointment of more than one Commissioner by virtue of
Order XXVI Rule 10 of the Code is no longer res integra and
has been settled by precedents, including the precedents of
the A.P. High Court. As a normal rule, there is no doubt that
two separate commissioners should not be issued to deal with
one and the same subject and to treat the report of both the
Commissioners as evidence in the case. It is only when the
report of the first Commissioner is unsatisfactory and the
Court is dissatisfied with his proceedings, that a Second
Commissioner could be appointed under the provision of
Order XXVI Rule 10 sub-clause (sic. Sub-rule) (3). If a second
Commissioner is appointed either by rejecting the report of
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the first Commissioner or without that, the legal effect is that
the report of the first Commissioner may be wiped out in law.
But, in view of the implications of Order XXVI Rule 10 Sub-rule
(2) of the Code, such a report and the evidence recorded by
the Commissioner would be evidence in that case, which has
to be taken into consideration while deciding the matter in
issue by the Court and, therefore, as a routine, if a second
Commissioner is appointed, it has got serious consequences
laden with danger to the ultimate justice. Thus such a
procedure of appointing second Commissioner or more than
one Commissioner for the same purpose is said to be
improper and illegal. The Court pointed out the following
infirmities in the order of the trial Court while appointing
another Commissioner.
Firstly, the trial Court opined that the Commissioner who
was appointed already is a junior and that his report can be
improved by appointing a senior advocate of the Bar, but the
same is inconsistent with the appointment of the first
Commissioner who has already done a part of the work, which
is not found to be defective not rejected. Secondly, if a
portion of the commission work was not fulfilled by the
Commissioner for any reason, it is possible to direct the very
same Commissioner to complete the work with further
materials and with the co-operation of the parties and their
advocates. Even assuming that the report of the first
Commissioner is not complete, the Court could still consider
whether the evidence on record through the report of the
Commissioner was adequate or inadequate to decide the
controversies between the parties in regard to the
assessment of mesne profit. Patently, the report of the
Commissioner covered the assessment of mesne profit at
least for two years. Without examining there implications,
the learned Subordinate Judge has landed in error in
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appointing the second Commissioner, which was disapproved
by the High Court of A.P since such an order is inconsistent
with the law and in exercise of jurisdiction beyond the scope
of law therein.
