A Court Commissioner Cannot Be Appointed Under Order XXVI Rule 9 to Collect Evidence.

The petitioners, plaintiffs in Special Civil Suit No. 22 of 2016 before the Civil Judge at Mahesana, sought damages alleging that construction of a check-dam had submerged their land.

They applied under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), for appointment of a Court Commissioner to ascertain the land’s current position. The trial court rejected the application at Exhibit 58, finding that it sought to collect evidence. The plaintiffs challenged that order under Article 227 of the Constitution.

Whether the trial court erred in rejecting the application to appoint a Court Commissioner under Order XXVI Rule 9 CPC to ascertain the current position of the suit land.

Whether the trial court’s rejection of the application warranted interference under Article 227 of the Constitution.

Order XXVI Rule 9 CPC empowers a court to appoint a Commissioner for local investigation, but that power cannot be used to assist a party in collecting evidence or to bring evidence on record through a Commissioner’s report.

In exercising supervisory jurisdiction under Article 227, the High Court will not interfere with the trial court’s view where it is neither perverse nor grossly erroneous.

The application itself stated that the plaintiffs sought a Commissioner’s report to place the current position of the land on record in support of their claim that the check-dam had submerged it.

The High Court agreed with the trial court that this amounted to collecting evidence for a party, rather than a proper basis for exercising the power under Order XXVI Rule 9 CPC. As that assessment was consistent with the application and was neither perverse nor grossly erroneous, Article 227 intervention was not warranted.

The petition was dismissed, the Rule discharged, and no order as to costs was made.