Case Note & Summary
The present Civil Revision Petition was filed by the fourth defendant in a partition suit challenging the order of the II Additional District Munsif, Erode, dated 06.06.2025, which scrapped the Advocate Commissioner's report and plan in I.A.No.5 of 2025 in I.A.No.1 of 2019 in O.S.No.310 of 2008. The suit was originally filed by the first respondent/plaintiff for a preliminary decree for partition of his 1/4 share and for permanent injunction. The suit was decreed on 25.11.2013. Thereafter, the plaintiff filed I.A.No.1 of 2019 for division of the suit property by metes and bounds and for allotment of his share by appointing an Advocate Commissioner. The Commissioner submitted his report and plan. Aggrieved by the report, the plaintiff filed I.A.No.5 of 2019 seeking to scrap the report and plan. The petitioner/defendant filed a counter contending that any errors could be rectified by calling for an additional report, and that the Commissioner had inspected without notice to him. The trial court allowed the application and scrapped the report on the ground that the Commissioner failed to measure the property, making equitable division impossible. The High Court heard the revision and considered the sole issue of whether scrapping the report was justified. The court noted that the facts were undisputed and that the trial court could have directed the Commissioner to rectify the defect by filing an additional report instead of scrapping the entire report. The High Court set aside the impugned order and directed the trial court to call for an additional report from the same Commissioner to rectify the defect, with notice to all parties. The revision petition was allowed with no order as to costs.
Headnote
A) Civil Procedure Code - Advocate Commissioner's Report - Scrapping vs. Rectification - Order 26 Rule 9, Section 115 CPC - The trial court scrapped the Commissioner's report for lack of measurements, but the High Court held that minor defects should be rectified by calling for an additional report rather than scrapping the entire report, as scrapping is a drastic step that should be avoided. (Paras 8-9) B) Partition Suit - Preliminary Decree - Final Decree Proceedings - Advocate Commissioner's Report - The suit for partition was decreed in 2013, and during final decree proceedings, the Commissioner's report was scrapped. The High Court set aside the scrapping order and directed the trial court to call for an additional report from the same Commissioner to rectify the defect. (Paras 2-4, 9)
Issue of Consideration
Whether the trial court was justified in scrapping the Advocate Commissioner's report and plan in entirety instead of directing rectification by calling for an additional report.
Final Decision
The High Court allowed the Civil Revision Petition, set aside the order dated 06.06.2025 passed in I.A.No.5 of 2025 in I.A.No.1 of 2019 in O.S.No.310 of 2008 by the II Additional District Munsif, Erode, and directed the trial court to call for an additional report from the same Advocate Commissioner to rectify the defect, after giving notice to all parties. No order as to costs.
Law Points
- Advocate Commissioner's report should not be scrapped for minor defects
- rectification by additional report is preferable
- Section 115 CPC
- Order 26 Rule 9 CPC
