Samuel 02 June 2023

Effect of ia petition which was allowed

Sir

The plaintiff filed IA petition No 25/2012 to appoint commissioner in the First Appellate court and the plaintiff paid Commissioner fees .The commissioner gave report.Then The respondent filed another IA No. 07/2018 to scrab the commission report and it was allowed and appointed new commissioner and asked the petitioner/respondent to pay commissioner fees which was appealed in HC by CRP which was also dismissed in favour of defendant .The respondent failed to pay the commissioner fees and the IA petition No 07/2018 to scrab the Commission report filed by the Respondent was dismissed for default.

Now the following two question raises to me.

1. Whether the first Commission report in IA No. 25/2012 is valid by law and in spirit.

2. Whether the grounds stated by the Respondent in the IA petition No.07/2018 is valid now and whether the same grounds can be taken as grounds for rejecting the first commission report by the first Appellate court while disposing the appeal. Is there any case laws or concerned Civil Procedure Code applicable for this context

Sirs May please clarify.

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4 Replies

T. Kalaiselvan, Advocate (Advocate) 02 June 2023

1. The subsequent IA filed by the respondent/defendant was dismissed for default, whereas the court has not decided the original IA if so, the petitioner of the original IA has to pursue it and conduct it properly.

Until the court has not passed any order in it, the status of that IA will be considered as pending.

2. The counter objection raised by respondent in first IA only will be taken for consideration for deciding the original IA and not the pleadings made in the subsequent IA.

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Samuel 02 June 2023

Sir,

Whether the Commission report given in the First IA is valid now.

And whether the pleadings once admitted in the second IA which was dismissed for default will be accepted in

again in the appeal in favour of the defendent who filed second IA to defeat the first commission report

Dr. J C Vashista (Advocate and Legal Consultant) 03 June 2023

You have stated to have filed IA in First appellete court for appointment of local commissioner, is it maintainable in an appeal ? I do not find it maintainable.

Subsequently when LC report is stated to have been submitted and taken on record by the Court and the LC has been examined (chief as well as cross) where is the question of its (report) validity or otherwise ?

The facts posted are not clear.

Samuel 03 June 2023

Sir,

LC was not examinined for chief as well as cross so far. But he submitted his report. Then posted for arguments. At that time Respondent filed IA to scrap Report of LC . Then appointed new commissioner asking Repondent to pay commissioner fees,failing which the IA was dismissed.Now the first report of first LC is maintainable, sir