CPC | Commission For Local Investigation Can't Be Set Up To Ascertain Issues Irrelevant To Dispute: Kerala High Court

The Kerala High Court on Tuesday ruled that a commission for local inspection can only be set up by a court to ascertain matters which are necessary to elucidate the issues involved in the dispute and not on a mere asking by one of the litigating parties. 

Justice A. Badharudeen added that the appointment of a commission to ascertain issues irrelevant to the dispute is an abuse of the process of court with intent to protract the matter and that such practices should be well curtailed.

"Order 14 Rule 2 of the Code of Civil Procedure mandates that court to pronounce judgment on all issues. Corollary proposition is that the Court need not decide or pronounce judgment on matters which are not issues of fact or issues of law. Thus the legal position is emphatically clear on the point that a commission for local inspection to be issued only to ascertain matters which are necessary to elucidate the matter in dispute and such commission cannot be appointed on a mere asking by one of the litigating parties."

The petitioner moved the Court aggrieved by the order of a Munsiff Court dismissing his application that sought the appointment of an expert commission to assess the construction carried out by him in the plaint schedule building.

Advocates Abraham Mathew and Anil Abey Jose appeared for the petitioner and contended that he obtained the plaint schedule building on licence first, and then on lease and he has been continuing as a tenant therein. The petitioner submitted that though the suit was filed against his forceful eviction from this building, it was necessary to assess the value of construction he made in the room. It was argued that the court below erroneously dismissed the application since the petitioner had spent money for such construction, the value of which he was entitled to get back.

However, Advocates M. Promodh Kumar and Maya Chandran appearing for the 1st respondent argued that the petitioner had filed the application for a commission in his suit seeking a decree of prohibitory injunction restraining forceful eviction. They pointed out that the issues to be considered in the suit were if a decree against forceful eviction or for a mandatory injunction was liable to be granted to the petitioner, for which an expert commission's report was not necessary. 

After perusing the impugned order, the Court gathered that the Munsiff had dismissed the application observing that the assessment of the value of the alleged construction was not a matter in issue in the suit.

At this juncture, the Court pondered over the purpose of appointing a commission for local inspection and if a commission can be appointed for local inspection to find things that are not relevant to decide the issue involved in the suit. The Judge noted that going by Order 26 Rule 9 of CPC, the purpose of the local investigation by appointing a commission was to elucidate any matter in dispute and not otherwise. 

The prayer in the suit was only to restrain the respondents from forcefully evicting the petitioner from the plaint schedule building and it did not claim the value of improvements.

"Be it so, the attempt of the petitioner herein to appoint an expert commission to assess the construction alleged to be made by him, is not necessary to decide the fact in issue involved in the Suit or to elucidate the fact in issue. In such cases, appointment of a commission is an abuse of process of court with intent to protract the matter and such practices should be well curtailed."

As such, it was decided that an assessment of the construction made by the petitioner was not necessary to decide the issue in the suit. Therefore, it was held that the application filed by the petitioner deserves no merit and that the Munsiff had rightly dismissed the same. 

Case Title: K.M. Abdul Jaleel v. Thazhe Iravath Rabiya & Ors. 

Citation: 2022 LiveLaw (Ker) 268

Click Here To Read/Download The Order