After 8 Years Without Trial, Madras HC Upholds Refusal To Scrap Commissioner Report, Says Evidence Must Come First

The plaintiff sued for mandatory and permanent injunction. In 2018, the trial court appointed an advocate commissioner, who filed a report.

The defendants objected, including on the grounds that the report omitted a house on their property, inadequately measured the property, and failed to state the plaintiff’s property boundaries.

After the plaintiff obtained an amendment to the plaint, the defendants applied to set aside the report and appoint a fresh commissioner; the trial court dismissed those applications. The defendants challenged those orders under Article 227. The High Court noted that the suit, filed in 2018, had not yet reached trial

The Court considered the petitions under Article 227 of the Constitution of India

It stated that parties must first establish their respective cases through oral and documentary evidence; a commissioner’s report is to be considered alongside that evidence, and objections to the report may be tested by examining the commissioner as a witness

After trial, the court may act on the report, set it aside and appoint a fresh commissioner, or seek clarification from the same commissioner through a specifically defined re-inspection

The High Court considered that the parties had focused on the commissioner’s report and related applications for years, while the trial had not commenced

Because the defendants had already filed objections, the Court considered it appropriate for the suit to proceed to evidence rather than appoint a fresh commissioner at that stage.

The defendants could file an additional written statement responding to the plaint amendment; thereafter, both sides could lead evidence, and the commissioner could be examined. The trial court could then assess the report and decide whether it required action or clarification

It directed the trial court to proceed with pleadings and evidence and, after trial, consider the commissioner’s report and determine whether to rely on it, set it aside and appoint a new commissioner, or seek clarification from the existing commissioner