“Commissioner Under Order 26 Rule 9 CPC Should Be Appointed Only When Evidence Is Insufficient”: J&K High Court Sets Aside Premature Demarcation Order
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh at Jammu has allowed in part a petition challenging the appointment of a Commissioner under Order 26 Rule 9 of the Civil Procedure Code by a trial court in a land demarcation matter. The Single Bench of Justice Rajnesh Oswal recorded that “the learned trial court has committed jurisdictional error while appointing the Commissioner under Order 26 Rule 9 CPC, when the parties had not even led their evidence and there was no issue before court that require elucidation.”
The Court intervened under Article 227 of the Constitution of India and set aside the trial court’s direction appointing the Tehsildar, Bahu as Commissioner to carry out a local demarcation of land under dispute between the parties. The impugned order, dated 19.10.2023, was passed by the Municipal Magistrate, Jammu. The High Court limited its interference to the appointment of the Commissioner, leaving other parts of the trial court’s order intact.
The dispute arose from two separate civil suits between the petitioner and the respondent, both concerning land measuring approximately 16 marlas situated in Survey No. 356 min at Village Sunjwan, Tehsil and District Jammu. The petitioner, Saraj Din, had earlier filed a suit seeking a permanent prohibitory injunction regarding the said land, which was pending before the same trial court.
Subsequently, the respondent, Liyaqat Ali, also filed a suit seeking to restrain the petitioner from interfering with his alleged peaceful possession over the property. The respondent described the disputed land in his pleadings with specific dimensions as “North:- 75 ft, South:- 68 ft, West:- 65 ft and East:- 65 ft.”
In addition to his pleadings, the respondent sought appointment of a Commissioner under Order 26 Rule 9 CPC to conduct a local investigation for “elucidation/clarification of the matter in dispute.” In the impugned order, the trial court also consolidated both suits, observing that the disputes between the same parties were pending and related to the same subject matter. It simultaneously appointed the Tehsildar, Bahu as Commissioner to undertake the demarcation exercise.
The petitioner approached the High Court invoking Article 227 of the Constitution of India, assailing the Commissioner’s appointment and contending that the trial court exceeded its jurisdiction under Order 26 Rule 9 CPC. The petitioner argued that since both suits had been consolidated for common adjudication and evidence was yet to be recorded, the appointment of a Commissioner at this stage was premature and unwarranted.
Petitioner’s counsel submitted that the trial court had acknowledged that both suits could be decided by leading common evidence, thereby eliminating the need for local investigation at this stage. The petitioner contended that such an appointment would serve the purpose of collecting evidence for one party, which is impermissible under procedural law.
On behalf of the respondent, it was submitted that the petition itself was not maintainable under Article 227 of the Constitution. The respondent’s counsel relied upon the decision of the Supreme Court in Radhey Sham and anr. vs. Chhabi Nath and ors., 2015 Legal Eagle (SC) 135. It was contended that supervisory jurisdiction could be exercised only in very limited and exceptional circumstances.
The respondent’s counsel further referred to the judgment in Darshan Singh vs. Indru Devi, decided by a Co-ordinate Bench of the High Court on 16.08.2022, arguing that appointment of a Commissioner to inspect the site and report back to the trial court falls within judicial discretion and should not be interfered with.
Justice Rajnesh Oswal, after hearing both parties and reviewing the trial court’s order, proceeded to assess the maintainability of the petition and the merits of the Commissioner’s appointment.
On the preliminary objection, the Court referred to Radhey Sham and anr. vs. Chhabi Nath and anr., and extracted the guiding principle that “the orders of both civil and criminal courts can be examined under Article 227 of the Constitution of India only in very exceptional cases when manifest miscarriage of justice has been occasioned.”
Further reliance was placed on the Supreme Court’s decision in Shalini Shyam Shetty and anr. vs. Rajendra Shankar Patil, (2010) 8 SCC 329. The Court quoted, “Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.”
Turning to the scope of powers under Order 26 Rule 9 CPC, the Court recorded that “The civil court has power to appoint the Commissioner both under Order 39 Rule 7 CPC and Order 26 Rule 9 CPC.” It further elaborated that “In terms of Order 39 Rule 7 CPC, the civil court can appoint the Commissioner for the purpose of inspection of any property which is the subject matter of such suit. So far as Order 26 Rule 9 CPC is concerned, the Commission can be issued to make local investigation only for the purpose of elucidating any matter in dispute.”
The Court noted that the expressions “inspection” and “investigation” used in these provisions carry distinct scopes, stating that “the scope of expression ‘investigation’ is larger and wider than ‘inspection.’” It found that Order 26 Rule 9 CPC is applicable where the court is unable to arrive at a conclusion based on available oral and documentary evidence.
In the present case, the Court noted that the trial court had itself observed that both suits could be decided by leading common evidence and that the parties were yet to commence the evidence stage. The Court remarked that “once there was no matter in dispute between the parties which required elucidation, the learned trial court could not have resorted to Order 26 Rule 9 CPC for the purpose of appointment of Commissioner.”
The Court cited Manzoor Ahmed & Ors. v. Assad Ullah & Ors., 2007 (2) JKJ[HC] 287, observing, “Occasion to seek elucidation on or to determine the matters appearing in rule 9 of Order XXVI of the Code would arise, in a suit, after framing of issues, which stage had not yet reached in the suit pending before learned Munsiff, Banihal.”
Referring to Darshan Singh vs. Indru Devi, the Court remarked that although the precise provision used by the trial court in that case was not mentioned, “it is clear that the Commissioner was appointed to visit spot and make inspection, which demonstrates that Commission was appointed under order 39 Rule 7 CPC.”
Justice Oswal also recorded that in both suits before the trial court, the parties were claiming possession over the disputed land and this issue could have been adjudicated upon by allowing them to lead evidence. The Court remarked that this procedural course was also noted by the trial court itself when it consolidated both suits.
The Court proceeded to partially allow the petition and set aside the appointment of the Commissioner by the trial court. The operative portion of the order stated, “the present petition is allowed in part by setting aside the order dated 19.10.2023 passed by the court of learned Municipal Magistrate, Jammu to the extent of appointment of Commissioner in suit titled ‘Liyaqat Ali vs. Saraj Din.’”
The Court disposed of the petition without issuing any further directions.
Advocates Representing the Parties
Advocate for Petitioner: Mr. Ankush Manhas, Advocate
Advocate for Respondent: Mr. Bari Abdullah, Advocate
Case Title: Saraj Din vs. Liyaqat Ali
Case Number: CM(M) No. 201/2023 and CM No. 6500/2023
Bench: Justice Rajnesh Oswal
[Read/Download order]
