In a recent judgment, the Hon’ble High Court of Karnataka noted that an order pertaining to appointment under order XXVI Rule 9 of Code of Civil Procedure, 1908 (CPC) in reference to a commissioner for local inspection can not only be made before the commencement of trial but after it also, pointing out that the above – mentioned provision is not “stage centric”. [1]
According to the judgment of the court, it has been clarified that for local, scientific and forensic investigations, it not only becomes permissible but desirable in various cases to appoint a Commissioner. Through this, the court also set aside another trial court order which had rejected the application for the appointment of a local Commissioner on the grounds that it was premature to file an application before the trial got completed.
The court also pointed out the purpose of the provision by referring to Rule 9 and 10 B of the code and held that the contention of not appointing the Commissioner before the completion of the trial conflicts with the Order XXVI Rule 10 of the Code. It was further noted that the report produced by the Commissioner is documentary evidence and subject to the relevancy of the document, the party to the suit is allowed to present it in court.
It was noted by the bench that, in the present case, such a report may have a huge benefit while ascertaining the just decision and assisting the court. Moreover, the relevancy of the report was also brought out and it was held that if the report prepared by the Commissioner does not have a relation with the subject matter of the dispute, there is no need to appoint a Commissioner. The primacy of the report of the local Commissioner will also be prevalent over oral evidence and witnesses.
The court has also made it clear that the form of suit under the Code does not determine the power of the court to appoint a Commissioner, but the factor upon which the appointment should be made is whether the report is necessary for getting a detailed view of the matter or not. In case the appointment is made before the commencement of a trial, it would result in a better and more focused trial.
Based upon the arguments from both sides, it was concluded that the onus to prove any encroachment lies upon the plaintiff or party alleging encroachment. Moreover, if a prayer is made by the petitioner for appointing a local Commissioner, the court has to allow it unless there are justifiable reasons for not making an appointment.
[1]https://www.livelaw.in/pdf_upload/court-commissioner-458759.pdf
