Can Advocate Commissioner challenge order setting aside his report filed in a suit?

Code of Civil Procedure, 1908 - Order XXVI - Can the Advocate Commissioner challenge the order setting aside his report filed in a suit and appointing another to execute the warrant of appointment? Held, The Advocate Commissioner has no right to be heard before his report is set aside and is not also a person aggrieved by the order appointing another to execute the warrant of appointment.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                         MR.JUSTICE V.CHITAMBARESH

                WEDNESDAY, THE 30TH DAYOF JULY 2014

                                    OP(C).No. 1710 of 2014 ()

                     

          B.SUBHASH,  Vs  State of kerala

Citation; AIR 2014 kerala 206

     Can the Advocate Commissioner challenge the order

setting aside his report filed in a suit and appointing another to

execute the warrant of appointment?

     2.    The   petitioner    is   the   Advocate    Commissioner

appointed in the final decree proceedings for partition in O.S.

No. 697 of 2009 on the file of the court of the Munsiff of

Alappuzha. The Advocate Commissioner filed an interim report

in the proceedings to the effect that the plaint schedule property

could not be identified with reference to the documents of title

relied on by the parties.       The plaintiff thereupon filed an

application to appoint another Advocate Commissioner to

execute the warrant of appointment on the premise that the

interim report deserved to be set aside. The court below allowed

the application and appointed another Advocate Commissioner

who has since filed a detailed report and survey plan after

                                 

conducting local inspection with notice. The grievance of the

petitioner is that he was not heard before another Advocate

Commissioner was appointed to complete the task thereby

brushing aside his interim report. The petitioner contends that

he should have been afforded an opportunity to explain his stand

and that the order appointing another Advocate Commissioner is

uncalled for and liable to be set aside.

      3.    An Advocate Commissioner can be appointed under

Order XXVI of the Code of Civil Procedure, 1908 ('the CPC' for

short) generally for the following purposes:

                   (i)   To examine witnesses.

                   (ii)  For local investigation.

                   (iii) For   scientific    investigation,

            performance of ministerial act and sale of

            movable property.

                   (iv) To examine accounts

                              and

                   (v)   To make partition.

The Advocate Commissioner is expected to adopt an impartial

                           

stand and shall behave in such an exemplary manner that he

gives no room for any allegation of bias from any one of the

litigating parties. The report of the Advocate Commissioner shall

be evidence in the suit in which it is filed (without him being

even examined) and shall form part of the record under Order

XXVI Rule 10(2) of the CPC. The court if dissatisfied with the

proceedings of the Advocate Commissioner for any reason can

direct such further enquiry to be made as it thinks fit under

Order XXVI Rule 10(3) of the CPC. The court is also empowered

to set aside the report and issue commission afresh by deputing

another Advocate to discharge the function under Order XXVI

Rule 14(3) of the CPC.

      4.    The duty of the Advocate Commissioner is only to

record evidence and give a vivid report of the true state of affairs

in order to aid the court to have a proper assessment of the

factual matrix.    The Advocate Commissioner is undoubtedly

entitled to his remuneration for the work hitherto done whether

or not his report is accepted, modified or set aside by the court

eventually in the proceedings. The Advocate Commissioner is

                           

thus an officer of the court who has no interest what so ever in

the subject matter of the litigation or in the person who would

ultimately win the cause. The Advocate Commissioner should

not be prestige conscious about his report and must remain

unruffled even if his report filed after laborious work is set aside

by the court for trivial reasons. It is for the parties to the lis to

pursue the case and it is for the court to decide about the

acceptability or otherwise of the report of the Advocate

Commissioner in the proceedings. The parties may or may not

examine the author of the report while testing its acceptability

and the Advocate Commissioner cannot insist on himself being

examined. The Advocate Commissioner has no right to be heard

before his report is set aside and is not also a person aggrieved

by the order appointing another to execute the warrant of

appointment.

      The Original Petition is rejected in limine.

                                       V. CHITAMBARESH

                                               JUDGE

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