Survey Commissioner Cannot Be Appointed To Collect Evidence: Jharkhand High Court
Bhavya Singh
27 Dec 2024 11:05 AM IST
The Jharkhand High Court, in a recent judgment while setting aside a trial court order appointing a survey commissioner, ruled that the order failed to establish the necessity for local investigation under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) and lacked sufficient reasoning.
The High Court cited the Apex Court's precedent in Saraswathy vs. Viswanathan [2002 (2) CTC 199], ruling, while setting aside the order of the trial court, and emphasized, “the object of appointment of Commissioner is not to collect the evidence but to elucidate the matters which are local in character and which can be done only by local investigation at spot.”
Justice Subhash Chand, presiding over the case, stated, “The grounds which are taken in the very application filed on behalf of the plaintiffs do not come under the purview of Order XXVI Rule 9 of CPC. There being no dispute between the parties in regard to the identity and also the location of the suit property, the impugned order by which the learned trial court has allowed the application needs interference and this petition deserves to be allowed.”
As per the factual matrix of the case, a suit was filed by the plaintiffs whereby they sought to declare the plaintiffs' right, title, and interest over certain plots of land, recover possession from the defendants as alleged unauthorised occupants, and secure a permanent injunction.
The plaintiffs claimed to be the rightful owners and alleged that the defendants had fraudulently secured an exchange order regarding the disputed land from the Sub-Divisional Officer (SDO), Deoghar.
During the proceedings, after concluding their evidence , the plaintiffs filed an application under Order XXVI Rule 9 CPC seeking appointment of a survey pleader commissioner for inspecting and reporting on the disputed plots. The application was opposed by the defendants asserting that there was no dispute regarding the property's identity or location, rendering such an appointment unnecessary.
The trial court, however, allowed the application, prompting the defendants to challenge the order before the High Court.
The Court emphasized that parties cannot use the provision to gather evidence, holding, “The finding recorded by the learned trial court is perverse, reason being in the application itself for appointment of pleader commissioner no where the applicant has mentioned for what purpose he wants to call for the report of survey commissioner. There is no finding of the learned trial court how the survey commissioner report was necessary for the correct and just appreciation of respective claims of both the parties.”
Allowing the petition, the High Court set aside the trial court's order and reiterated that judicial discretion in appointing commissioners must adhere to the principles laid out in the CPC and judicial precedents.
Case Title: Krishna Mistry @ Krishna Vishwakarma vs Baidyanath Prasad Yadav & Ors
LL Citation: 2024 LiveLaw (Jha) 200
