Over Alleged Construction On Shared Land, Madras HC Upholds Commissioner Refusal For Now, Says Evidence Must Come First

In brief

The question

Whether an advocate commissioner should be appointed under Order XXVI Rule 9 CPC, before the parties adduce evidence, to measure the B-schedule property and record its physical features.

The court held

The Court disposed of the revision while sustaining the order dismissing the commissioner application.

It also directed

It directed the trial court to proceed with evidence from both sides and thereafter decide whether appointment of an advocate commissioner is necessary, treating any resulting report as a piece of evidence.

01Facts

The plaintiff sought mandatory and permanent injunctions, alleging that the defendant had sold her properties, including her one-fourth share in the B-schedule property, and lacked rights over that property.

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After an alleged attempt by the defendant to construct on it, the plaintiff applied under Order XXVI Rule 9 CPC for an advocate commissioner to measure the property and record its physical features.

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The District Munsif Court dismissed the application as an attempt to collect evidence. The plaintiff challenged that order under Article 227 of the Constitution.

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02Issues

i.Whether an advocate commissioner should be appointed under Order XXVI Rule 9 CPC, before the parties adduce evidence, to measure the B-schedule property and record its physical features.

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ii.Whether the trial court should consider appointing a commissioner after the parties have adduced evidence, if a report is necessary to effectively decide the suit.

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03Law Applied

Order XXVI Rule 9 CPC permits the appointment of a commissioner for local investigation where the investigation is requisite or proper to elucidate a matter in dispute.

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A commissioner’s report should assist the court in effectively disposing of the suit; it should not be used to collect evidence or serve as the foundation on which the proceedings are built.

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Unless urgency requires earlier action, the court should ordinarily allow the parties to adduce evidence first and then assess whether a commissioner’s report is necessary.

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The revision was brought under Article 227 of the Constitution.

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04Reasoning

The plaintiff sought measurement and a record of the property’s physical features in support of his claim concerning the defendant’s alleged lack of rights and attempted construction.

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The Court considered that the parties relied on documents and held that they should first be allowed to present oral and documentary evidence.

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As no basis for departing from that sequence was identified, the commissioner’s report could not be made the starting point or evidentiary foundation of the suit.

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The trial court should nevertheless reconsider appointment after evidence, if a report is needed to support its findings.

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