Local Commissioner Can't Be Appointed To Collect Fresh Evidence At Appellate Stage: Himachal Pradesh High Court

The Himachal Pradesh High Court held that under Order 26 Rule 9 of the Code of Civil Procedure, a Local Commissioner can't be appointed at the appellate stage merely to help a party gather fresh evidence which it failed to produce or challenge during the trial.Justice Vivek Singh Thakur: “By appointing a Local Commissioner under Order 26 Rule 9 CPC, the Court is not to be used as a facilitator for collection of evidence in favour or against any party”.The power to appoint a local commissioner at the appellate stage is only with the Court if they find it necessary for a complete finding and proper adjudication of the controversy between the parties.Background Facts:The plaintiffs (respondents in this case) filed a suit for recovery of ₹7,00,000, claiming damages for structural loss allegedly caused to their house by illegal digging carried out by the defendants (petitioners in this case), below and adjacent to their property.The Trial Court decided in favour of the plaintiffs, by passing a decree for recovery of ₹7,00,000/- as damages on account of damage/loss caused to the house of the plaintiff. Aggrieved the defendants, filed an appeal before the First Appellate Court, and during the pendency of the appeal, the filed an application under Order 26 Rule 9 read with Section 151 CPC, seeking appointment of a Local Commissioner to inspect the spot and report about the condition of existing building and its location and age. The defendant contended that they were illiterate and were never advised to get the spot inspected by a Civil Engineer, due to which they were unable to put forth their claim clearly and categorically before the Trial Court. They submitted that the local commissioner's report would help the court to reach a just conclusion regarding the alleged damage, and it would not cause any injustice to the opposite party. However, the First Appellate Court dismissed the appeal, holding that the defendants did not challenge the plaintiff's technical expert's report at the trial stage and failed to exercise due diligence to produce their own expert evidence, despite having an opportunity. The defendants then filed a civil revision before the High Court under Section 115 CPC, challenging the order rejecting the application for appointment of a Local Commissioner. However, the High Court upheld the order of the Appellate Court, and dismissed the Civil Revision filed by the defendants. Case Name: Dalip Singh & another V/s Khatri Ram & anotherCase No.: Civil Revision No. 19 of 2025Date of Decision: 08.07.2025For the Appellant: Mr. Atul G. Sood, Advocate For the Respondents: Ms Radhika Gautam, Advocate, for Respondent No.1Click Here To Read/Download Order

Local Commissioner Can't Be Appointed To Collect Fresh Evidence At Appellate Stage: Himachal Pradesh High Court

Mehak Aggarwal

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