Local Commissioner’s report

Local Commissioner’s report- Order 26 Rule 10 CPC

Local Commissioner’s report  in terms of Order XXVI Rule 10(2) CPC can be used in evidence . The Hon’ble High Court of Delhi in M L Brother LLP v. Mahesh Kumar Bhrualal Tanna [CS(COMM) 126/2022]  has held that :-

“10. Order 26 Rule 10(2) CPC stipulates that the report of the Commissioner and the evidence taken by the Commissioner shall be evidence in the suit and shall form part of the record. The said provision reads as under:

Procedure of Commissioner (Local Commissioner’s report)

.— (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. Commissioner may be examined in person.

—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

The Hon’ble High Court of Delhi in In Levi Strauss & Co. v. Rajesh Agarwal 2018 IAD (Delhi) 622,  has  held that once the Commissioner has filed the evidence along with his report, it becomes evidence in the suit itself.

Order 26 Rule 10(2) CPC – Whether mandatory

The examination of the  Commissioner  is not mandatory to admit the report of the Commissioner as evidence in the suit. The relevant observations are as under.The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10 (2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.However if there is any objection raised by the opposite party with regards to the Local Commissioner’s report then he may be examined in open court. It is important to challenge the same in the written statement.

The Hon’ble High Court of Delhi in  Vinod Goel v. Mahesh Yadav [RFA 2022/DHC/004806 CS (COMM) 413/2021 decided on 23rd May, 2018 has pointed out that the local commissioner acts as an officer of the court and his examination is not required. The Hon’ble  Supreme Court  while dealing with in Misrilal Ramratan & Ors. Mansukhlal & Ors. v. A. S. Shaik Fathimal & Ors., 1995 Supp (4) SCC 600,  held that :-“It is now settled law that the report of the Commissioner is part of the record and that therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case.”

Important Judgments -Local Commissioner’s report- Order 26 Rule 10 CPC

The Hon’ble High Court of Delhi in  Levis Strauss v. Rajesh Agarwal [RFA 127/2007 decision dated 3rd January, 2018],

The Hon’ble Supreme Court  in CIVIL APPEAL NO. 1973 OF 2022; MAY 11, 2022 has held that the commissioners report is only an opinion and noting  as the case may be..”

Conclusion

The Local Commissioner an officer of the  Court  and  Order 26 Rule 10 (2) of CPC is clear that once commissioner has filed evidence with  report the same shall be treated as evidence in the suit and shall form part of the record. However the Hon’ble Supreme Court in CIVIL APPEAL NO. 1973 OF 2022; MAY 11, 2022 has held that the commissioners report is only an opinion and noting  . It is to be noted that the facts and circumstances of each case is different and accordingly each case is treated as per its merits.

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