Appointment Of Second Commissioner Without Assigning Reasons Violates Order 26 Rule 10(3) CPC: Jharkhand High Court

The Jharkhand High Court in a recent ruling has emphasized that appointing a second Pleader Commissioner without assigning reasons for ignoring the report of the first Commissioner violates the provisions of Order 26, Rule 10(3) of the Civil Procedure Code (CPC) and is to be condemned.

Justice Sanjay Kumar Dwivedi, presiding over the case, criticized the lower court's decision, stating, “The practice of appointing a second Commissioner without formally recording objections to the first Commissioner's report without considering whether the first Commissioner's report should be superseded, or not is a practice which cannot be too strongly condemned. Reasons for superseding the first Commissioner's report must be recorded in writing by the Court.”

“A second commission should not be issued to deal with one and the same subject unless it is thought that the report of the first Commissioner is not satisfactory in which case the earlier commission should be wiped out altogether and attention should be paid only to what is reported by the second Commissioner. Instead of that if the Judge balances the report of one Commissioner against that of the other and expresses a preference for the view of the first Commissioner, he acts with great impropriety and contrary to what is contemplated by Order 26, Rule 10(3) of C.P.C.,” Justice Dwivedi added.

The observation was made while hearing a petition filed under Article 227 of the Constitution, challenging an order passed by a Civil Judge. The lower court had allowed the respondents-plaintiffs' application objecting to the first Pleader Commissioner's report and directed the appointment of a new Pleader Commissioner without providing reasons for rejecting the initial report.

Case Background

The case stemmed from a partition suit involving brothers, who were the respondents-plaintiffs and petitioner-defendants in this matter. The disputed property, a single-storey building, was acquired by their father from his independent income and remained under his possession until his demise in 1976. The suit resulted in a decree allocating one-third of the property to each brother. Following this, a Pleader Commissioner was appointed to divide the property, and a report was submitted. However, the respondents-plaintiffs objected to this report.

The petitioner contended that the report was dismissed without any valid reason, and a new Pleader Commissioner was appointed in its place. The impugned order merely mentioned that the plaintiffs had “serious objections” regarding the allocation of shares, without elaborating on the nature of those objections or providing substantive reasons for rejecting the report.

Court's Observations and Rationale

The High Court stressed that rejecting a Pleader Commissioner's report and appointing a second Commissioner must be done in compliance with Order 26, Rule 10(3) of CPC. The provision requires the court to record detailed reasons for setting aside the initial report and issuing a second commission. The Court highlighted that dissatisfaction with the Commissioner's findings must be expressed before the submission of the report. If dissatisfaction arises afterward, the first report must be set aside with reasons before appointing a second Commissioner.

The Court also referred to the Apex Court's judgment in Swami Premananda Bharathi v. Swami Yogananda Bharathi reported in AIR 1985 Kerala 83, which clarified that a second commission can only be issued in compliance with the procedural requirements under Order 26, Rule 10(3).

The Court stated, “The order appointing a second Commissioner, without assigning any reasons why the report of the previous Commissioner is ignored, is not only contrary to the provisions of Order 26, Rule 10(3) but is to be condemned.”

The High Court concluded that the Civil Judge's order was procedurally flawed as it did not record reasons for rejecting the first Commissioner's report. It set aside the impugned order, thereby restoring the petition to the file of the Civil Court.

Case Title: Maya Ram v. Asha Ram & Ors. 

LL Citation: 2025 LiveLaw (Jha) 3

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