Madras HC Says Trial Courts Should Defer Advocate Commissioner Appointments Until Evidence Is Recorded, Unless Urgent

The plaintiff filed O.S. No. 34 of 2024 seeking a declaration of right, title and interest over the ‘B’ Schedule property, mandatory removal of a superstructure allegedly raised there, and delivery of possession

He applied under Order XXVI Rule 9 CPC for an Advocate Commissioner, assisted by a Surveyor, to measure the property and identify the extent of the alleged encroachment

The District Munsif-cum-Judicial Magistrate, Pallipattu, dismissed the application as an attempt to collect evidence, observing that the plaintiff had to prove his title

The plaintiff challenged that order under Article 227 of the Constitution

Article 227 of the Constitution empowers the High Court to exercise supervisory jurisdiction over subordinate courts; the Court found no perversity warranting its intervention in this case

Under Order XXVI Rule 9 CPC, a commission may be used to obtain information that assists the Court in resolving a matter in dispute, but it should not be used to collect evidence on a party’s behalf.

Ordinarily, the Court should first consider the oral and documentary evidence; if, after assessing that evidence, a commission would assist in deciding the dispute, it may then appoint one.

A Commissioner’s report is a piece of evidence, generally corroborative, and should not alone determine the case; an earlier appointment may be appropriate where urgency exists

The plaintiff’s claim to the ‘B’ Schedule property depended first on establishing his right and title through oral and documentary evidence; a Commissioner’s report could not establish those rights for him

The alleged encroachment was a further question to be considered in light of the evidence from both sides.

The Court therefore considered it appropriate to defer any commission until the Trial Court had assessed that evidence and determined whether a report would assist in measuring the alleged encroachment

As the order dismissing the application disclosed no perversity, Article 227 intervention was not warranted

It directed the Trial Court to keep the observations on the timing and purpose of appointing an Advocate Commissioner in mind as the suit proceeds; costs were not awarded, and the connected miscellaneous petition was closed