O.26 R.9 CPC Allows Appointment Of Commissioner To Clarify Disputed Matters Only When Evidence is Inconclusive: J&K High Court

Justice Rajnesh Oswal set aside an order of the Municipal Magistrate, Jammu, which had appointed a Tehsildar as Commissioner for demarcating disputed land between two brothers, observing that the trial court erred in exercising its jurisdiction at a premature stage.

The case stemmed from a land dispute between Saraj Din, the petitioner, and Liyaqat Ali, the respondent, both residents of Jammu. The petitioner had earlier filed a suit for permanent prohibitory injunction regarding a piece of land which was pending before the trial court.

Subsequently, the respondent filed a separate suit seeking a permanent prohibitory injunction to restrain the petitioner from interfering with his possession of the same land. The respondent also filed an application under Order 26 Rule 9 CPC, requesting the appointment of a Commissioner to demarcate the land in question.

The trial court, while clubbing both suits, appointed a Tehsildar as a Commissioner to conduct a local investigation and demarcate the land. The petitioner challenged this order, arguing that the appointment of a Commissioner was unnecessary since both suits could be decided based on common evidence, and no clarification of facts was required at that stage.

The petitioner's counsel, Mr. Ankush Manhas, contended that the trial court had erred in appointing a Commissioner under Order 26 Rule 9 CPC, as the stage for such an appointment had not yet been reached. He argued that the court should have allowed the parties to lead evidence first, and only if the evidence was inconclusive, could a Commissioner be appointed for further clarification.

Justice Oswal, after hearing both parties, delved into the scope of Order 26 Rule 9 CPC and Order 39 Rule 7 CPC and explained that under Order 39 Rule 7, a Commissioner can be appointed for the inspection of property, whereas under Order 26 Rule 9, a Commissioner can be appointed 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 Order 26 Rule 9 has a wider scope than “inspection” under Order 39 Rule 7.

The court observed that in the present case, the trial court had itself concluded that both suits could be disposed of based on common evidence. Since the parties had not yet led their evidence, there was no issue before the court that required elucidation through a local investigation, the court underscored.

The court also cited the judgment in Manzoor Ahmed vs. Assad Ullah (2007), where it was held that the stage for seeking elucidation under Order 26 Rule 9 arises only after the framing of issues, which had not yet been reached in the present case.

Distinguishing the case from Darshan Singh vs. Indru Devi, where the Commissioner was appointed under Order 39 Rule 7 CPC for inspection, not under Order 26 Rule 9 for investigation, Justice Oswal concluded that the trial court had committed a jurisdictional error by appointing a Commissioner under Order 26 Rule 9 CPC at a premature stage when no evidence had been led, and no issue required clarification.

In view of these observations the court set aside the order appointing the Tehsildar as Commissioner. However, it did not interfere with the consolidation of the suits, allowing the trial court to proceed with common evidence.

Case Title: Saraj Din Vs Liaqat Ali

Citation: 2025 LiveLaw (JKL) 91

Click Here To Read/Download Judgment