When report of court commissioner is admissible even though it is objected by tenant?
during the course of his arguments was with respect to the
area of the petition schedule room, which, according to
the landlord, was 265 sq.ft. and the tenant, 125 sq.ft.
According to him, both the authorities below went wrong
in holding that the petition schedule room is having an
area of 250 sq.ft. on the basis of Ext.C1, the report of the
Advocate Commissioner, which was marked without his
resistance being considered. A scrutiny of the relevant
records reveal that objection was filed by the tenant
against the facts reported by the Advocate Commissioner
in his report. It is urged by the learned counsel that the
Advocate Commissioner was not examined by the
landlord despite the incorporation of her name in the
witness list filed as early as on 10.12.2013 and therefore,
the opportunity to cross-examine was denied to him.
According to the learned counsel, in the said
circumstances, Ext.C1 commission report ought not have
been relied upon by the Rent Control Court. It is true, the
objections filed by the tenant find a place in the case
records forwarded to this court from the Rent Control
Court. We could not notice any falsity in the statement of
the counsel that the Commission report was marked as
Ext.C1 without examining the Advocate Commissioner.
In the above circumstances, it is pertinent to have a look
at the legal principles enunciated in Order 26 Rule 10
which is reproduced hereunder for convenient reference:
"Procedure of Commissioner:- (1) The Commissioner,
after such local inspection as he deems necessary and after
reducing to writing the evidence taken by him, shall return
such evidence, together with his report in writing signed by
him, to the Court.
(2) Report and depositions to be evidence in suit.- The
report of the Commissioner and the evidence taken by him
(But not the evidence without the report) shall be evidence
in the suit and shall form part of the record, but the Court or,
with the permission of the Court any of the parties to the
suit may examine the Commissioner personally in open
Court touching any of the matters referred to him or
mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
(3) Commissioner may be examined in person.-Where the
Court is for any reason dissatisfied with the proceedings of
the Commissioner, it may direct such further inquiry to be
made as it shall think fit."
9.Therefore, sub-Rule (2) of Rule 10 of Order XXVI
envisages that the report of the Commissioner and the
evidence taken by him shall be evidence in the suit and
shall form part of the record. But, it is left open for the
court or either of the parties to a lis after getting
permission of the court to examine the commissioner
personally in open court regarding any of the matters
reported to by the latter in his report or the manner in
which the investigation has been conducted by him.
Upon perusal of the records of the case obtained from the
Rent Control Court, we are convinced that the
commission report was objected to by the tenant in
writing. It is the argument of Sri.George Cherian that
despite the objection raised by the tenant, the landlord
abstained himself from taking measures to examine the
Advocate Commissioner, and thereby opportunity was
denied to the former to cross-examine him. According to
him, such being the circumstances, Ext.C1 ought not to
have been relied upon by the authorities below to arrive at
the finding regarding the area of the petition schedule
premises as 250 sq.ft. We also could not find fault with
the Rent Control Court placing reliance upon Ext.C1 for
the twin reasons. Firstly, the commission was not an ex-
parte one. Secondly, the tenant has not availed of his
entitlement under Order 26 Rule 10(2) to examine the
Advocate Commissioner to elicit explanation on the
matters of resistance. If the tenant applied for
examination of the Advocate Commissioner under sub-
rule (2) of Rule 10 of Order 26, the court would not have
any other option than to grant him permission to examine
the Advocate Commissioner. In such a circumstance, it is
contemplated in the provision referred to supra itself that
the reliability of the report in evidence would be subject
to the outcome of the facts elicited in the cross-
examination. In the case on hand, the tenant, having not
applied for getting permission to exercise the statutorily
provided right of examination of Advocate
Commissioner, cannot now be heard to say before this
Court exercising the powers of revision that the Rent
Control Court went wrong in arriving at 250 sq. ft. as the
area of the tenanted premises solely on the basis of
Ext.C1. The argument of Sri.George Cherian is
untenable for the above reason and the authorities below
cannot be found fault with in taking such a stand.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS.JUSTICE MARY JOSEPH
WEDNESDAY, THE 5TH DAY OF AUGUST 2015
R C Rev.No. 297 of 2014 ()
RAJESH R.KARTHA
Vs
K.A. ISMAIL
Citation: AIR 2016(NOC)292 Kerala
https://www.lawweb.in/2016/05/when-report-of-court-commissioner-is.html
