A court commissioner cannot be appointed in an injunction suit merely to collect evidence of alleged encroachment.

The plaintiffs brought a suit for a permanent injunction, alleging that the defendants’ development activities threatened their possession of Survey No. 96, Hissa No. 4.

They challenged a 2021 survey and measurement by the District Inspector of Land Records before the revenue authorities, but both appeals were dismissed.

In the suit, the plaintiffs sought appointment of a land-records official as Court Commissioner to conduct a joint measurement. The Civil Judge allowed the application and directed the Commissioner to determine whether the plaintiffs had encroached on the defendants’ properties. The defendants challenged that order under Article 227 of the Constitution.

1. Whether, in a suit for injunction simpliciter, the trial court properly exercised its discretion under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, by appointing a Court Commissioner to conduct a joint measurement and determine whether the plaintiffs had encroached on the defendants’ properties

2. Whether the impugned order warranted interference under the High Court’s supervisory jurisdiction under Article 227

Order XXVI Rule 9 of the Code of Civil Procedure, 1908 permits a court to direct local investigation where it would elucidate a matter in controversy; in boundary disputes, a joint survey may be appropriate, but the discretion must be exercised judicially, having regard to the nature of the suit, relief sought, stage of proceedings, and whether investigation is needed to clarify the controversy. A Court Commissioner must not be appointed merely to collect evidence.

The Court applied Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare (2001 (2) Mh LJ 959), Dnyandeo Vithal Salke v. Dagdu Kadar Inamdar (2017 (3) Mh LJ 314), and Sanjay Kisan Thorat v. Ramchandra Parsu Thorat (2018 (2) Mh LJ 954), which hold that a commissioner’s report on possession or other facts that a party must prove may amount to impermissible evidence collection.

The Court distinguished Vachhalabai W/o Kundlik Gavane v. Chinkaji S/o Malhari Gavane (2012 (4) Mh LJ 198), where the suit sought removal of encroachment and possession and conflicting reports existed.

The plaintiffs’ suit was for injunction simpliciter and did not allege that the defendants had encroached on a specified portion of the suit property; it principally challenged the earlier survey and map, which had been affirmed in two revenue appeals.

The trial court nevertheless directed a fresh measurement to determine whether the plaintiffs had encroached on the defendants’ land. In the circumstances, that direction would assist the plaintiffs in obtaining evidence rather than elucidate a properly framed matter in controversy.

The earlier survey was already on record, and its legality had not been put in issue through a declaratory claim in the suit. The trial court therefore exercised its discretion contrary to the principles governing Order XXVI Rule 9.

It quashed and set aside the Civil Judge’s order dated 5 April 2025 and rejected the plaintiffs’ application for appointment of a Court Commissioner. The Court clarified that its observations were confined to the impugned order and expressed no opinion on the merits of the suit; there was no order as to costs.