Advocate Commissioner's Report Only Assists Court, Does Not Determine Rights Of Parties: Rajasthan High Court
It does not relieve either party of obligation to establish its case by leading admissible evidence, Court said.
While upholding appointment of Advocate Commissioner under Order 39 Rule 7 CPC, the Rajasthan High Court observed that the power was to facilitate effective adjudication of the issues arising at the interlocutory stage, and the Commissioner's report did not confer or extinguish any substantive right of either party. The bench of Justice Farjand Ali opined that neither party was relieved...
While upholding appointment of Advocate Commissioner under Order 39 Rule 7 CPC, the Rajasthan High Court observed that the power was to facilitate effective adjudication of the issues arising at the interlocutory stage, and the Commissioner's report did not confer or extinguish any substantive right of either party.
The bench of Justice Farjand Ali opined that neither party was relieved from their obligation to establish their case by leading admissible evidence during trial because of the findings in the Commissioner's report.
Order 39 Rule 7 CPC empowers civil courts to authorize inspection or sampling of any property that is subject matter of a dispute.
The Court was hearing a petition challenging the order passed by the Civil Judge wherein the application filed under Order 39 Rule 7 by the respondent was allowed, and Commissioner was appointed to conduct local inspection of the suit property.
For context, petitioner had initiated a suit for permanent injunction and had sought temporary injunction alleging encroachment by the respondent over a portion of the suit property. The interim protection was granted by the trial court.
Respondent filed an application under Order 39 Rule 7, to inspect the spot and place on record the existing physical features, measurements and boundaries of the disputed property. The application was allowed by the court.
This was challenged by the petitioner alleging that this was an attempt to collect evidence through the process of the Court. It was argued that the matters that shall be determined by the Commissioner, including questions regarding property's possession, measurements, boundaries etc. had to be established by parties by leading independent evidence during trial.
After hearing the contentions, the Court highlighted that the controversy involved disputes relating to the existing physical condition of the suit property, and that the actual position at the site was unclear. Hence, the Court appointed the Commissioner for inspection before deciding the application for temporary injunction.
It was held that the purpose of the Commissioner was not to collect evidence on behalf of either party, but to empower the Court to obtain objective assessment of existing condition of property to facilitate effective adjudication of the issues.
“A report of the Commissioner merely assists the Court in appreciating the factual matrix and does not, by itself, confer or extinguish any substantive right, nor does it relieve either party of its obligation to establish its case by leading admissible evidence during trial… If, for the purpose of effectively considering the prayer for temporary injunction, the learned Trial Court deemed it appropriate to obtain an objective status report regarding the existing physical features of the suit property through a local inspection, such exercise cannot be said to be either beyond the ambit of Order XXXIX Rule 7 CPC.”
Accordingly, the petition was dismissed.
Title: Roshan Lal v Veni Ram & Ors.
Citation: 2026 LiveLaw (Raj) 283