Trial Courts Expected To Decide On Acceptability Of Advocate Commissioner's Report Before Proceeding With Trial: Kerala High Court

Justice G. Girish observed that the Trial Courts should not wait to consider the challenge against the Advocate Commissioner's Report and Plan until the final stage of evidence in the suit since that would cause hardships to the parties, inconvenience to the Court and delay the proceedings.

“For avoiding the above unhealthy trend and practice of compromising the grave errors and anomalies in the Commission Report, and declining further enquiry in the matter, it is highly necessary to proceed with the enquiry relating to the acceptability of the Commission Report forthwith, once an application is filed by any of the parties in that regard. Therefore, the Trial Courts are expected to decide the issue regarding the acceptability of the Commission Report before proceeding with the trial of the suit, if any of the parties have moved an application challenging the Commission Report and Plan.”

The land acquisition appeal pertained to the compensation amount deposited in the Additional Sub-Court, Thalassery for the acquisition of land for construction of Kannur International Airport.

Kerala Industrial Infrastructure Development Corporation (KINFRA) purchased some land from the first respondent for the construction of Kannur Airport. It was stated that the first respondent was not paid the compensation amount for land acquisition since he failed to produce title deeds before the Acquisition authority. The Acquisition authority deposited the compensation amount before the Sub-Court, Thalassery since they were unable to trace the title over the property. On the other hand, the appellants claim title over the disputed acquired property through a partition decree.

The first respondent filed a Commission Application before the Sub-Court. An Advocate Commissioner was appointed to inspect the disputed property to measure the acquired property, ascertain the location, nature and lie of the acquired property, and prepare a plan.

The Report of the Advocate Commissioner was marked as an exhibit before the Trial Court.

The appellants filed an interlocutory application before the Trial Court for remission of the Commission Report with a direction to prepare a fresh Commission Report and Plan alleging that it was erroneously prepared without proper measurements. The Reference Court disposed of the interlocutory application with an order stating that the right of appellants to seek remission of the Commission Report would be considered after taking evidence in the case. This order was challenged before the High Court by the appellants in several proceedings, at the end of which the High Court opined that the Reference Court would consider the remission of the Commission Report during the Trial.

Accordingly, the appellants approached the High Court in a land acquisition appeal since the Reference Court ignored the above observations of the High Court and relied upon the Commission Report and Plan to establish the right of the first respondent over the disputed property.

The appellants contended that apart from the erroneous findings in the Commission Report, there was not much material to establish the title of the first respondent over the disputed property.

The Court found that there was no document to establish the title of the first respondent or the appellants over the disputed property. The Court stated that the Reference Court had erred in not considering the fact that even the first respondent had not produced any document establishing his title over the disputed property.

The Court further stated that the findings of the Reference Court was per se erroneous for relying upon the Commission Report and Plan to conclude that the property belonged to the first respondent. It noted that the Reference Court was wrong for relying upon the Commission Report and Plan that lacked basic requirements. “The Reference Court committed serious error in eschewing the request of the appellants for remission of the above Commission Report and plan, notwithstanding repeated directions of this Court in the judgments in O.P(C)No.89 of 2019, O.P(C)No.1616 of 2019 and O.P(C)No.36 of 2020 to consider and decide the above challenge,” added the Court.

It observed that Rule 10 (3) of Order XXVI of the CPC states that the Court can order further inquiry if it is dissatisfied with the proceedings of the Advocate Commissioner. It stated that Rule 10 (3) of Order XXVI does not mention the stage of suit at which the Advocate Commissioner must be examined to evaluate the acceptability of the Commission Report and Plan. 

Thus, the Court stated that the Reference Court erred in postponing the challenge against the Commission Report and Plan until the final stage of the litigation, after the completion of evidence.

In the facts of the case, the Court set aside the decree and judgement of the Trial Court and remanded the matter to the Reference Court for fresh disposal on getting a foolproof Commission Report and plan. It remitted that Commission Report and Plan to the Advocate Commissioner for further enquiry based on relevant records.

Counsel for Appellants: Advocates Cibi Thomas, Lohithakshan Chathadi Kannoth

Citation: 2024 LiveLaw Ker 287

Case Title: R K Ramakrishnan v PC Moosa Haji

Case Number: LA.APP. NO.108 OF 2023

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