In a significant judgment, the Jharkhand High Court addressed the scope and limitations of appointing a survey commissioner under Order XXVI Rule 9 of the Code of Civil Procedure (CPC). The court emphasized that such appointments should not be utilized for evidence collection but are intended to clarify matters of a local nature that require on-site investigation.
Case Background
The plaintiffs initiated a lawsuit seeking recognition of their rights, title, and interest over specific land plots. They alleged that the defendants had unlawfully occupied these lands by obtaining a fraudulent exchange order from the Sub-Divisional Officer (SDO) of Deoghar. After presenting their evidence, the plaintiffs requested the appointment of a survey pleader commissioner to inspect and report on the disputed plots, aiming to substantiate their claims. The defendants opposed this request, arguing that there was no ambiguity regarding the property's identity or location, making such an appointment redundant.
Trial Court's Decision
The trial court approved the plaintiffs' application for appointing a survey commissioner. Dissatisfied with this decision, the defendants appealed to the Jharkhand High Court, contending that the appointment was unwarranted and misapplied the provisions of Order XXVI Rule 9 CPC.
High Court's Analysis and Ruling
Justice Subhash Chand presided over the appeal and scrutinized the trial court's rationale. The High Court observed that the trial court's order lacked a clear justification for the necessity of a local investigation. The court reiterated that the primary purpose of appointing a commissioner under Order XXVI Rule 9 CPC is to elucidate matters of a local nature through on-site investigation, not to collect evidence on behalf of the parties.
Citing the Supreme Court's precedent in Saraswathy vs. Viswanathan [2002 (2) CTC 199], the High Court underscored that the role of a commissioner is not to gather evidence but to clarify issues that are inherently local and require direct observation. The court noted that in the present case, there was no dispute between the parties regarding the identity or location of the suit property. Therefore, the appointment of a survey commissioner was deemed unnecessary.
The High Court criticized the trial court's decision as lacking sufficient reasoning and being perverse. It highlighted that the plaintiffs' application did not specify the purpose for which the survey commissioner's report was sought, and the trial court failed to provide findings on how such a report would assist in resolving the dispute.
Conclusion
The Jharkhand High Court set aside the trial court's order appointing a survey commissioner, reinforcing the principle that such appointments under Order XXVI Rule 9 CPC should not be used as tools for evidence collection. The court clarified that in the absence of disputes concerning the identity or location of the property, appointing a commissioner is unwarranted. This judgment serves as a crucial reminder of the limited scope of appointing commissioners for local investigations, ensuring that the provisions of the CPC are applied appropriately and not misused to gather evidence extraneously.
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