Once received in evidence, a commissioner’s report cannot be set aside under Order XXVI Rule 10(3).

The petitioner was the plaintiff in O.S. No. 6 of 1997, a suit for declaration of title and injunction before the II Additional Munsiff’s Court, Ernakulam.

In an earlier appeal, the High Court remanded the matter with a specific direction to appoint an Advocate Commissioner, assisted by a surveyor, to measure the parties’ properties and the disputed pathway with reference to their title documents.

The Commissioner submitted a report and plan on 5 November 2018.

After the matter returned to the trial court, the second defendant filed I.A. No. 1 of 2024 seeking to set aside the Commissioner’s report and surveyor’s sketch.

The Commissioner’s report and connected documents had already been received in evidence on 20 November 2024, the Commissioner and surveyor had been examined, and the evidence was closed on 2 December 2024.

Whether the defendants’ objection to the manner in which the Commissioner measured and identified the properties was sustainable, particularly when no such objection was raised during the inspection and measurement?

Whether the trial court could set aside the Commissioner’s report under Order XXVI Rule 10(3) of the Code of Civil Procedure after the report had been received in evidence, the Commissioner and surveyor had been examined, and the evidence had been closed?

The Court applied Order XXVI Rule 10(3) CPC, under which the Commissioner’s report forms part of the evidentiary record and the court may examine the Commissioner regarding the matters referred to him; however, the report is not conclusive or sacrosanct and may be assessed along with the other evidence.

The Court relied on Balbir Dewan v. Naveen Chander, holding that objections to a commission report alert the court to alleged discrepancies and may be tested through examination of the Commissioner.

Thankmani v. Vasanthi, concerning the court’s duty to ensure that the report contains the particulars necessary to resolve the disputed issue.

Once the report is received in evidence, the proper course is to adduce other evidence challenging its correctness; it is impermissible for the court to subsequently strike the report from the record.

The High Court held that the defendants’ objection was an afterthought.

The remand order required measurement with reference to the parties’ title documents and did not direct identification of the properties by reference to survey records or survey stones.

The defendants were present when the Commissioner conducted the inspection but did not object to the method of measurement or request that it be conducted in any particular manner.

They had also relied upon the report when seeking amendment of the written statement to introduce a counterclaim, further undermining their subsequent challenge.

More importantly, the trial court had already received the report and connected documents in evidence, examined the Commissioner and surveyor, and closed the evidence.

At that stage, the report formed part of the evidentiary record and could be accepted or rejected only after assessment with the other evidence; it could not be set aside by a later application under Order XXVI Rule 10(3) CPC.

Entertaining the application after closure of evidence was therefore a serious procedural irregularity.

The original petition was allowed.

The orders dated 10 January 2025 and 13 March 2025 were set aside, and I.A. No. 1 of 2024 was dismissed.

The trial court was directed to evaluate the Commissioner’s report and all other evidence independently, without being influenced by the High Court’s observations on the merits, and to dispose of the suit within two months from receipt of the judgment.