In a recent judgment, the Jammu and Kashmir and Ladakh High Court clarified the application of Order 26 Rule 9 of the Civil Procedure Code (CPC), emphasizing that appointing a Commissioner for local investigation is appropriate only when the evidence presented is inconclusive and requires further elucidation. Justice Rajnesh Oswal presided over the case, which involved a land dispute between two brothers, Saraj Din and Liyaqat Ali, both residents of Jammu.
The dispute arose when Saraj Din filed a suit seeking a permanent prohibitory injunction concerning a specific piece of land. Subsequently, Liyaqat Ali initiated a separate suit aiming to restrain Saraj Din from interfering with his possession of the same land. In his suit, Liyaqat Ali submitted an application under Order 26 Rule 9 CPC, requesting the appointment of a Commissioner to demarcate the disputed land. The trial court decided to consolidate both suits and appointed a Tehsildar as Commissioner to conduct a local investigation and demarcate the property in question.
Challenging this decision, Saraj Din argued that the appointment of a Commissioner was premature. He contended that the trial court should have allowed both parties to present their evidence first and that a Commissioner should only be appointed if the evidence proved to be inconclusive. His counsel, Mr. Ankush Manhas, asserted that the trial court had erred in its application of Order 26 Rule 9 CPC by appointing a Commissioner at such an early stage of the proceedings.
Justice Oswal examined the provisions of Order 26 Rule 9 CPC, which permits the appointment of a Commissioner for local investigation to elucidate any matter in dispute, ascertain the market value of property, or determine mesne profits or damages. The court emphasized that the term "investigation" under this rule has a broader scope compared to "inspection" under Order 39 Rule 7 CPC, which allows for the appointment of a Commissioner for property inspection.
The court observed that the primary objective of appointing a Commissioner under Order 26 Rule 9 CPC is to clarify issues when the existing evidence is insufficient or inconclusive. It is not intended to enable a party to gather evidence to strengthen their case. The court noted that in the present case, the trial court had appointed the Commissioner without first allowing the parties to present their evidence. This approach was deemed premature, as the necessity for a Commissioner's appointment arises only when the court, after evaluating the evidence, finds it inconclusive and requires further clarification.
Justice Oswal further highlighted that the appointment of a Commissioner should not be used as a means for a party to collect evidence through the court to support their claims. The responsibility lies with the parties to present sufficient evidence to substantiate their allegations. Only when such evidence is found lacking or inconclusive should the court consider appointing a Commissioner to conduct a local investigation.
Consequently, the High Court set aside the trial court's order appointing the Tehsildar as Commissioner. The court directed that the trial should proceed with the parties presenting their evidence. If, upon evaluation, the evidence is found to be inconclusive, the trial court may then consider appointing a Commissioner under Order 26 Rule 9 CPC to clarify specific disputed matters.
This judgment underscores the principle that the appointment of a Commissioner for local investigation is a judicial tool to be employed sparingly and only when necessary to resolve ambiguities arising from inconclusive evidence. It reinforces the notion that parties must diligently present their evidence, and the court's intervention through the appointment of a Commissioner is warranted solely to clarify disputes that cannot be resolved through the evidence provided by the parties.
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