Order 26 Rule 9 CPC | Karnataka HC Issues Guidelines For Appointment Of Local Commissioners, Timely Filing Of Inspection Reports

A single judge bench of Justice Anant Ramanath Hegde sitting at Kalaburagi, said “The report under Order XXVI of the Code, in an appropriate case, is an effective tool available to the court and the party to the proceeding. The party to the proceeding, may use this tool for proving his/her case and the court to unravel the mystery surrounding the case.”

The court broadly outlined the cases in which the provision can be effectively applied such as (i) The dispute relating to the easement of air, light, pathway, road, watercourse, etc. (ii) The dispute relating to the boundary, encroachment. (iii) The dispute relating to forgery. (iv) The dispute relating to the existence or otherwise of a stream, pond, drainage, watercourse, road, pathway, pollution, or nuisance.

However, it clarified that these examples are not exhaustive but merely illustrative. "The guidelines in this order should not be construed as having exhaustively listed the cases in which the Commissioner can be appointed. Nor the observations should be construed as having diluted or expanded the discretion vested with the trial court in such matters.”

Court said it cannot lose sight of the fact that in a large number of suits before the Trial Court, the applications are filed for the appointment of a Commissioner. In other words, this is one of the frequently invoked provisions of the Code.

The bench then proceeded to issue the following guidelines.

a) The power of the court to appoint the Commissioner for local inspection or any other purpose provided in Order XXVI of the Code is discretionary. However, the said discretion is guided by not only Order XXVI Rules 9 and 10 of the Code but also the provisions of the Indian Evidence Act dealing with relevancy, expert opinion, and the burden of proof.

b) The discretion to exercise the power under Order XXVI of the Code of Civil Procedure is not governed by the form of the suit. The Court can appoint the Commissioner in any kind of suit, provided a report of the Commissioner under Order XXVI of the Code is necessary for elucidating the matter in dispute.

c) The issue framed in the suit, or where the issue is not yet framed, the pleadings which give rise to issue/s and the documents placed on record would be a guide to ascertain the ‘matter in dispute’ referred in Order XXVI Rule 9 of the Code

d) The power to appoint Commissioner for local inspection or scientific investigation/expert’s opinion can be invoked even suo motu by the court, without there being an application by either of the parties, if the Court deems it appropriate to secure the report of the Commissioner. However, appropriate reasons must precede the order appointing the Commissioner and such orders are to be passed only after hearing the parties before it.

e) The Commissioner can be appointed either before or after the commencement of the trial. However, having due regard to the nature of the controversy, if the report is essential for elucidating the matter in dispute, it is desirable to have the local inspection before the commencement of trial as it is likely to reduce the volume of oral evidence in a given case.

f) In addition to the report, having regard to Order XXVI Rule 10 of the Code, the evidence taken by Commissioner reduced in writing can also be taken on record and examined by the court while considering the report.

g) The report of the Commissioner is not conclusive proof of what is stated therein. The report is only a piece of evidence that the Court has to examine based on the other materials on record.

h) Report of the Commissioner need not be formally marked for being considered as evidence. Once submitted to the court, the report is part of the court record and can be looked into by the court.

i) The court may in its discretion examine the Commissioner on any matter concerning the report. There is no compulsion to examine the Commissioner. However, if the objection is filed to the report, and the party filing the objection seeks to examine the Commissioner then the Commissioner should be examined. In either case, once the Commissioner is examined, the court having due regard to the evidence, may reject or accept the report in its entirety or in part, provided there are materials to justify such a finding on the report. In appropriate cases, the merit of the report can be considered at the final hearing. While considering the report at the final hearing, if the court finds that the report is erroneous and fresh commission is required, the court may pass appropriate order in this regard.

j) If the court is dissatisfied with the ‘proceedings of the Commissioner’ as found in Order XXVI Rule 10 (3), it may direct further inquiry depending on the facts. As a matter of caution, it is clarified that examination and order under order XXVI 10 (3) are only to verify if the Commissioner has followed the proper procedure while carrying out his task.

k) The person who has filed an objection to the report has the option of cross-examining the Commissioner to substantiate his objections or even without cross-examination, it is open to establish that the report is inadmissible in evidence.

Guidelines pertaining to Timelines:

The bench said it is conscious of the fact that in quite a large number of cases, the Commissioners are appointed by the trial courts. By the time the report is submitted to the court, quite often, if not all the time, a lot of time is spent awaiting the report. To save the precious time of the court and to streamline the procedure, as far as practicable, the following procedures may be adopted;-

a) The Court may fix the date and time for local inspection, directing the parties to be present at the disputed property, to avoid the process of issuance of notice to the parties by the Court Commissioner.

b) The court shall also fix the time frame for the parties to file a memo of instructions and shall scrutinise the instructions submitted and if need be reframe the instructions to focus the attention on the matters in dispute.

c) If the court feels that the Commissioner is required to submit a report on a particular matter or a question, the court shall also frame the specific question to be answered by the Commissioner.

d) It is desirable to specify in the order whether or not the parties are entitled to submit an additional memo of instructions to the Commissioner at the time of local inspection.

e) The time frame be fixed for submitting the report to the Court and while fixing the time, due regard must be had to the nature of the commission work and the urgency involved in the matter.

f) If the survey of any land is ordered to be conducted by a head of the survey department or any other designated officer, the court having regard to the nature of the work may also specify in the order, whether the Commissioner appointed is authorised to delegate the work to some other person in the same department.

g) Wherever practicable, the court shall direct the court Commissioner, to furnish a number of true copies of the report to the counsel representing the parties to the suit, while submitting the report to the court.

h) Time schedule should also be fixed for filing objections to the report of the Commissioner if any.

i) In all cases, where the report of the Commissioner is awaited, the court may if practicable proceed with the trial or other stages of the proceeding.

Case Title: Shadaksharappa And Kumari Vijayalaxmi

Case No: W.P.NO.201274/2022

Citation: 2023 LiveLaw (Kar) 57

Date of Order: 24-01-2023

Appearance: Mahantesh Patil, Advocate for petitioner.

Sanjay Kulkarni, Advocate for R1.

Click Here To Read/Download Judgment