Commissioner Under Order 26 Rule 9 CPC Should Only Be Appointed When Evidence Presented By Parties Is Insufficient To Resolve Dispute: J&K High Court
The Jammu and Kashmir High Court held that a Commission under Order 26 Rule 9 CPC could be issued only when the trial court is unable to decide the controversy based on the evidence placed by the parties.The court noted that a Commissioner under Order 39 Rule 7 CPC is appointed for inspection purposes, while a Commissioner under Order 26 Rule 9 CPC is meant for investigation to elucidate...
The Jammu and Kashmir High Court held that a Commission under Order 26 Rule 9 CPC could be issued only when the trial court is unable to decide the controversy based on the evidence placed by the parties.
The court noted that a Commissioner under Order 39 Rule 7 CPC is appointed for inspection purposes, while a Commissioner under Order 26 Rule 9 CPC is meant for investigation to elucidate disputed facts.
A bench of Justice Rajnesh Oswal said that there was no factual ambiguity requiring local investigation before the evidence stage. The court held that since no evidence had been presented yet, the trial court could not have assumed factual uncertainty that warranted the appointment of a Commissioner. Therefore, it erred in appointing a Commissioner at this stage.
The court observed that when the court, based on ocular and documentary evidence, is not in a position to reach a definite conclusion on a particular issue or fact, a commission for local investigation may be issued to clarify the matter.
The court, therefore, set aside the order passed by the learned Municipal Magistrate, Jammu, to the extent of appointing a Commissioner in the suit.
The court relied on Manzoor Ahmed & Ors. v. Assad Ullah & Ors., wherein it was held that the occasion to seek elucidation or determine matters under Rule 9 of Order XXVI of the Code arises after the framing of issues, which had not yet occurred in the suit pending before the trial court.
BACKGROUND
The petitioner challenged the order issued by the Municipal Magistrate, Jammu, under Order 26 Rule 9 of the Civil Procedure Code (CPC). The trial court appointed the Tehsildar as a Commissioner to visit and demarcate the disputed land in Sunjwan, Jammu.
The petitioner had previously filed a suit for a permanent prohibitory injunction regarding the same land, which was already pending before the same trial court. The respondent later filed a separate suit claiming ownership and peaceful possession of the same property and sought a prohibitory injunction against the petitioner. The trial court consolidated both suits and appointed the Commissioner under Order 26 Rule 9 CPC to conduct an inspection and demarcate the disputed land.
The petitioner objected, arguing that the Commissioner's appointment was premature as both parties had not yet presented evidence.
APPEARANCE:
Ankush Manhas, Advocate FOR Petitioners
Bari Abdullah, Advocate FOR Respondent.
Case-title: Saraj Din vs Liyaqat Ali, 2025, (JKL)