Friday, 3 July 2020

What is the distinction between the appointment of a Commissioner under Order 26, Rule 9 and Order 39, Rule 7 of CPC?

 The factum of possession relevant to the adjudication of the petitions filed seeking temporary injunctions shall have to be decided always and in all circumstances with reference to the evidence adduced on either side and independent of the observations made, if any by the Commissioner inter alia in his report. What has been specifically observed and noted down in the report alone merit consideration by the Court which features may elucidate the fact in dispute. The appointment of a Commissioner either under Order 26, Rule 9 of the Code of Civil Procedure (for brevity 'the Code') for localization or under Order 39, Rule 7 for detention, preservation or inspection of any property, which is the subject matter of the suit, is certainly not for the purpose of collecting evidence. Where the matter in dispute requires further elucidation a Commission can be issued under Rule 9 of Order 26 of the Code, and where it is necessary or expedient for purpose of obtaining full information or evidence, the Court may authorize the Commissioner under Order 39, Rule 7 of the Code to inspect any property in dispute to take any samples or to make any observation or to conduct any experiment for that purpose. These two provisions operate thus separately and for different purposes. One is to elucidate the fact in dispute and the other is to obtain full information and evidence mostly for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason, that can be known by the Court if and when required. Vide Kalandi Swain v. Braja Kishore MANU/OR/0022/1980 : AIR1980Ori98 . Ultimately, the fact in dispute shall have to be decided by the Court only on the basis of the material produced by the respective parties which is either further elucidated or explained fully by means of a report of the Commissioner. However, the appointment of Commissioner appears to be not permissible either under Order 29, Rule 9 or under Order 39 Rule 7 of the Code for collecting evidence.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

C.R.P. Nos. 2388 and 2393 of 2005

Decided On: 05.12.2005

 Jayalakshmi Constructions Vs. Behboob Ali Khan and Ors.

Hon'ble Judges/Coram:
T. Ch. Surya Rao, J.




1. Both these revision petitions can be disposed of together since identical questions of law and fact are involved and as the parties are same.

2. Two applications were filed seeking appointment of Commissioner in two suits pending adjudication between the parties inter se in the same Court. By means of an identical order although passed separately in two separate petitions, the Court below appointed a Commissioner to note down the physical features of the suit schedule mentioned properties with a direction to draw a rough sketch and to take photographs, if necessary.

3. The order appointing Commissioner in both the applications are now being sought to be assailed solely on the premise that such an appointment would tantamount to fishing in evidence. The suits in between the parties appear to have been filed seeking the relief of perpetual injunction. In the concomitant petitions filed, the parties sought for temporary injunctions. When those applications had been coming up for inquiry and adjudication, separate petitions were filed seeking appointment of a Commissioner.

4. The learned Counsel appearing for the revision petitioners represents that the appointment of a Commissioner sought for is obviously to fish out evidence which cannot be permitted. To buttress the said contention, the learned Counsel seeks to place reliance upon a Judgment of this Court in Bongu Ramulu and Anr. v. Gudur Narender Reddy MANU/AP/0455/1998 : 1998(3)ALD657 . That was obviously a case where the appointment was sought for to ascertain as to who were in possession of the suit property as on the date of presentation of the suit and also to note down the physical features and material evidence available at the suit land for the just and proper disposal of the petition filed for temporary injunction. Therefore, this Court held that such an application was not maintainable inasmuch as the Court had to decide itself the question of possession basing only on oral and documentary evidence adduced before it.

5. Malla Bhaskara Rao and Ors. v. Konchada Ananda Rao MANU/AP/0588/1999 : 1999(5)ALD113 was a case where an application seeking amendment of the plaint was filed and was pending consideration. In the meanwhile, the appointment of a Commissioner was sought in respect of a relief which was the subject matter of the proposed amendment. Under those circumstances, it was held that the appointment of Commissioner was premature.

6. Both the above Judgments can be distinguished having regard to the facts in the instant case.

7. On the other hand, the learned Counsel appearing for the respondents seeks to contend that a Commissioner can be appointed to note down the existence of physical features and there is every distinction between the appointment of a Commissioner under Order 26, Rule 9 and Order 39, Rule 7 of the Code. He seeks to place reliance upon a short noted Judgment of this Court in O.D. Harry and Ors. v. G. Krishna and Ors. 1983(1) ALT 29 (NRC). It was held thus-

The court has got ample power for appointing a commissioner to make local investigation and to note the peculiar physical features of the suit property which the party seeks to rely upon at trial in support of his case for seeking a perpetual injunction. In this case the lower Court has confined the scope of enquiry by the Commissioner to note down the existence of the physical features of the suit property and to submit a report. This is amply supported by a combined reading of Order XXVI, Rule 9 and Order XXXIX, Rule 7 C.P.C
8. Reliance has also been sought to be placed upon the judgment of Orissa High Court in Subal Kumar Dey v. Puma Chandra Giri and Ors. MANU/OR/0057/1989. That was a case where a suit for partition was filed. Accompanying the suit, an application seeking temporary injunction was also filed. Initially the Court granted an ad interim order of injunction. The first defendant resisted the suit and also the order of ad interim injunction. In addition thereto, he filed an application seeking appointment of a commissioner to inspect the disputed land. The plaintiffs also filed an application for punishing the first defendant for violation of the order of injunction and an application seeking police aid to implement the order of injunction. The trial Court rejected the application filed by the first defendant seeking appointment of a Commissioner on the premise that it would amount to rendering him assistance to collect evidence. That was assailed before the High Court in revision. In the said background, it was held in para thus:

Report of a Commissioner appointed under Order 26, Rule 9, C.P.C shall be evidence as provided under Order 26, Rule 10, C.P.C. report of inspection shall not be evidence unless otherwise proved. Power under Order 39, Rule 7, C.P.C. is not frequently used. This is a power to be exercised by the Court when occasion demands and when inspection is necessary for proper appreciation and adjudication of the matter. The dispute in the present case relates to the situation of the disputed land, the nature of construction on the house of the plaintiffs. While plaintiffs claim the disputed land to be a part of their dwelling house, defendant 1 claims that he has purchased vacant land adjacent to the dwelling house of the plaintiffs. Allegation is relating to construction of house by defendant 1 which plaintiffs intend to arrest during pendency of the suit. Defendant 1 in the written statement has stated that he has already constructed the house. A local inspection of the disputed land and its adjoining areas would give a clear picture to the Court for considering the question of temporary injunction which is pending before it. The same does not amount to collection of evidence in the case.
9. Shorn of all other details and having regard to the purpose for which the Commissioner was appointed under the impugned orders, it is obvious that noting down the physical features of the property, drawing a rough sketch and taking photographs, if necessary, may not afford any reasonable basis, in my considered view, to adjudicate the contentious issue of factum of possession germane in the context for consideration by the Court in the two applications filed seeking temporary injunctions. The orders now being impugned, therefore, seem to be innocuous and may not prejudice the interests of either of the parties.

10. The factum of possession relevant to the adjudication of the petitions filed seeking temporary injunctions shall have to be decided always and in all circumstances with reference to the evidence adduced on either side and independent of the observations made, if any by the Commissioner inter alia in his report. What has been specifically observed and noted down in the report alone merit consideration by the Court which features may elucidate the fact in dispute. The appointment of a Commissioner either under Order 26, Rule 9 of the Code of Civil Procedure (for brevity 'the Code') for localization or under Order 39, Rule 7 for detention, preservation or inspection of any property, which is the subject matter of the suit, is certainly not for the purpose of collecting evidence. Where the matter in dispute requires further elucidation a Commission can be issued under Rule 9 of Order 26 of the Code, and where it is necessary or expedient for purpose of obtaining full information or evidence, the Court may authorize the Commissioner under Order 39, Rule 7 of the Code to inspect any property in dispute to take any samples or to make any observation or to conduct any experiment for that purpose. These two provisions operate thus separately and for different purposes. One is to elucidate the fact in dispute and the other is to obtain full information and evidence mostly for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason, that can be known by the Court if and when required. Vide Kalandi Swain v. Braja Kishore MANU/OR/0022/1980 : AIR1980Ori98 . Ultimately, the fact in dispute shall have to be decided by the Court only on the basis of the material produced by the respective parties which is either further elucidated or explained fully by means of a report of the Commissioner. However, the appointment of Commissioner appears to be not permissible either under Order 29, Rule 9 or under Order 39 Rule 7 of the Code for collecting evidence.

11. From a perusal of the impugned orders, it is obvious that the Commissioner was appointed only to note down the physical features, to draw the rough sketch and to take photographs, if necessary. Therefore, the apprehension of the revision petitioners that it is for the purpose of collection of evidence appears to be not real. Even otherwise, the Court will refrain from using such reports for the purpose of deciding the main issue in controversy except to elucidate the fact in dispute after obtaining full information in respect thereof. I, therefore, see no illegality or irregularity that has been committed by the Court in having passed the impugned orders.

12. For the above reasons, both the Civil Revision petitions fail and are dismissed at the threshold. No order as to costs.


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