Order XXVI Rule 9 CPC | Application For Appointment Of Local Commissioner Can Be Made Even Before Commencement Of Trial: Karnataka HC

A single judge bench of Justice Anant Ramanath Hegde said “The provision is not ‘stage’ centric. Thus the provision can be invoked either before the commencement of the trial or after.”

Further the court clarified that “The appointment of a Commissioner for local inspection, or scientific/forensic investigation/expert’s opinion is indeed to secure the evidence and the same is not only permissible but also desirable in certain cases.”

The bench gave the clarification while allowing a petition filed by one Shadaksharappa and setting aside the order passed by the trial court by which it rejected the application made for appointment of the Commissioner for local inspection of the alleged encroachment on the suit road. The trial court had rejected the application on the ground that the application filed before the completion of the trial is premature.

The respondent had opposed the plea contending it was impermissible for appointment of a Commissioner for local inspection in a suit seeking relief of permanent injunction. Further, if the Commissioner is appointed and the report is secured, the same amounts to collection of evidence which is also impermissible. Finally, it was submitted that the application for local inspection before completion of the trial is not contemplated in the scheme of Order XXVI of the Code.

The court referred to Order XXVI Rules 9 and 10-B of the Code and said “The very purpose of Order XXVI of Code is to secure evidence. Thus, the contention that the Commissioner cannot be appointed for local inspection and such a recourse amounts to collection of evidence overlooks the provision, namely the Order XXVI Rule 10 of the Code.”

Further it said “The report of the court Commissioner would be documentary evidence under the Indian Evidence Act. The party to the suit is entitled to produce documentary evidence in support of his case, subject of course, to the relevancy of the document.”

It added “The party to a suit in an appropriate proceeding is enabled under the law to prove his case through the report of the Commissioner. In a given case that calls for the appointment of a Commissioner, if the application is rejected, the same amounts to a denial of permission to lead evidence.”

The bench also opined “The report, given the intrinsic complexities of matter in a case, may go a long way in arriving at a just decision or assisting the court to appreciate the other evidence on record or fact situation in a proper perspective. If the report of the Commissioner has nothing to do with the subject matter in dispute, then there cannot be an order appointing the Commissioner. Order appointing a Commissioner can be made only if the Commissioner’s report becomes a relevant piece of evidence.”

Then it held “The report based on local inspection will be a handy tool to decide the case relating to encroachment. In the case on hand, the petitioner to prove his assertion of encroachment, instead of leading oral evidence of witnesses has applied for local inspection, and the same is not only permissible but also desirable.”

Noting that the decision as to when the report of the Commissioner is to be secured must be taken having due regard to the facts and circumstances. The bench expressed “The discretion, though lies with the court, as to appoint the Commissioner before the trial or after the trial, the decision must be taken with due regard to the possibility of reducing or eliminating the need to record the oral evidence of witnesses to prove an issue which could be effectively decided with the aid of the report.”

It added “In a given case, the appointment of the Commissioner before the commencement of the trial may facilitate a focused trial.”

Then it held “Considering the nature of the case, this court is of the view that an order rejecting the application, with the liberty to file an application for local inspection after the trial is nothing but placing the cart before the horse.”

Finally the court made it clear that the power of the court to appoint the Commissioner is not controlled by the form of the suit. It held “The language of the provision is clear. It does not impose any such restrictions based on the form of the suit. The guiding factor is ‘whether the report is necessary for elucidating matters in dispute’. It can be any kind of suit. Be it suit for injunction, mandatory injunction, declaration and injunction, possession, partition, specific performance, or any suit for that matter.”

It concluded by saying “The burden of proving the alleged encroachment is on the plaintiff. Instead of voluminous oral evidence, if the petitioner seeks to prove his contention relating to encroachment through the report of the Commissioner, the prayer for local inspection should be willingly granted unless there are justifiable reasons for the court to take a view that the local inspection is a futile exercise. For this reason, this Court is of the view that the Trial Court committed a grave error in not appointing a surveyor for local inspection.”

Accordingly it allowed the petition and directed the Trial court to appoint the jurisdictional surveyor to measure the suit property and to secure the report.

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