Whether the order of appointment of court commissioner can be challenged in appeal from decree?

  An order appointing a Court Commissioner can generally be challenged in the appeal from the decree, if that interlocutory order affected the decision of the case. The relevant provision is Section 105 CPC, because an order appointing a commissioner is ordinarily not an independently appealable order under Order 43 Rule 1 of CPC.

Relevant provision

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Overview of Order 39 Rule 7 of CPC

 Order 39 Rule 7 of the Code of Civil Procedure deals with "Detention, preservation, inspection, etc, of subject-matter of suit". This provision empowers courts to make specific orders regarding property that is the subject matter of litigation or connected to questions arising in the suit.

Detailed Provisions

Sub-rule (1) grants the court discretionary power to make orders on application by any party, subject to terms the court deems fit, for three specific purposes:

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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.

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Whether court should appoint commissioner at initial stage of proceeding?

In Mahendranath Parida (supra), this

Court held that when the controversy is as to

identification, location or measurement of the 

land or premise or object, local investigation

should be done at an early stage so that the

parties can be aware of the report of the

Commissioner and can go to trial prepared.

In Ramakant Naik and others vs. Bhanja

Dalabehera, 2015 AIR CC 1724 (ORI), this

Court held that issuance of a Commission for

local investigation is the discretion of the

Court. While considering the prayer for

appointment of Commission, the Court must

apply its mind to the facts and circumstances

of the case and pass order. No straight jacket

formula can be laid down. Before issuance of

Commission, the Court must be satisfied that

there is prima facie case in favour of the

applicant.

On a reading of Order 26 Rule 9 C.P.C.,

it is manifest that the stage of appointment of

Survey Knowing Commissioner has not been

prescribed. When the legislature in its wisdom

has not prescribed the stage of appointment of

Survey Knowing Commissioner, the power of

the Court to appoint the Survey Knowing

Commissioner can not be cabined, cribbed or

confined.”

9. In view of the authoritative pronouncement of this Court in

the case of Bhabesh Kumar Das (supra), the order dated 2.9.2016

passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur

in I.A No.06 of 2016 arsing out of C.S. No.20 of 2016 is quashed. 

HIGH COURT OF ORISSA: CUTTACK

CMP No.1403 of 2016

Nayana Manjari Sahoo V  Rajakishore Sahoo & another

PRESENT:

 DR. JUSTICE A.K.RATH

Citation: AIR 2017 Orissa

Date of judgment: 15.02.2017

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Precaution to be taken by court while appointing second court commissioner

 The restriction of issuing commission one after

another has to be understood under the public policy

having speedy disposal, time management, cheaper

administration of justice and the like.     So the legal


position can be summarised in the following lines:

(i)   There is no provision for setting aside the deposition

recorded by the Commissioner or the report submitted

thereof under Rule 1 to 8 of Order XXIV CPC which are

dealing with issuance of commission for examination of

witnesses.

(ii) There is no provision anywhere in Rule 1 to 8 of

Order XXIV, prohibiting issuance of a second commission

when it is found to be necessary, especially when the

report is incomplete      or   the witness examined was

recalled, or a new witness list is submitted and allowed.

(iii) There is no provision for setting aside the report

submitted by the commissions issued for making local

investigation under Rule 9 to 10(3) of Order XXVI CPC.

On the other hand, Rule 10(2) enables the court to have

a second commission to conduct further enquiry.          The

question of setting aside the earlier one does not arise

and it is not at all necessary to set aside the earlier one

 under Rule 9 to 10(3) of Order XXVI CPC.


(iv) The legal position is very same in the matter of

issuance of commission for scientific investigation,

performance of ministerial act and sale of movable

property wherein the provisions of Rule 10 of Order XXVI

CPC made applicable as if they apply in relation to a

commission appointed under Rule 9 of Order XXVI CPC.

(v) The very same legal position is also made applicable

in the matter of commission to examine accounts

governed by Rule 11 to        12(2) of Order XXVI CPC

wherein also the scope of a "further enquiry" provided.

(vi)    The question of setting aside or varying or

confirming the report of a commission would arise only in

the case of a commission appointed for the purpose of

effecting partition under Rule 13 to 14(3) of Order XXVI

CPC. It mandates that when the commission report is

confirmed or varied, the court is bound to pass a decree

in accordance with the same and when it is set aside, to

issue another commission for that purpose. So setting

aside of earlier commission report is a condition


precedent in the matter of commission appointed for the

purpose of making partition.

(vii)     The issuance of successive commission either

under Rules 1 to 8, or under Rules 10 to 13 of Order

XXVI, without having dissatisfaction either the report or

proceeding of the commissioner earlier appointed, is

deprecated.

(viii). The dissatisfaction if any entertained by the court

in the proceedings of commissioner or the report thereof

under rules 10 to 13 of Order XXVI CPC, is only an initial

assessment in nature, shall not be read as substitute for

set aside     the report or wiping off the same from the

record or evidence.

(ix) Going by the phraseology used in various rules viz.,

1 to 13 of Order XXVI even a second commission is

permissible      though it may result in conflicting report.

There is no scope for exercising the jurisdiction under

Section 151 CPC in respect to the matters covered by

rule 1 to 15 of Order XXVI CPC.



(xi) Rule 8 of Order XXVI CPC became redundant by the

incorporation of Rule 4A in Order XXVI CPC.

   

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

   PRESENT:

     MR.JUSTICE P.R.RAMACHANDRA MENON
                                  &
     MR. JUSTICE P.SOMARAJAN

     15TH DAY OF DECEMBER 2016

                      RSA.No. 733 of 2004 

            FRANCIS ASSISSI, Vs   SR.BREESIYA
     

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Whether court should appoint commissioner in case of encroachment?

 This Court has taken a view that when it is a case of
encroachment, it is always open to the Court in exercise of powers under
Order 26 rule 9 of the Civil Procedure Code to appoint a Commissioner 
to examine the alleged claim of the parties based on the document of title
of both the parties. In the present case, the appellants are claiming to be
the owners of the property based on the Sale Deed of the year 1916.
Respondents no. 1, 4 to 12 also claim title based on the same Sale Deed
which is also of the year 1916. The properties purchased by the
respective parties or their ancestors are also depicted in the
Communidade plan at Exhibit 28. All these documents would have to be
reconciled to examine whether there is in fact any encroachment as
claimed by the appellants. Prima facie, on perusal of the Communidade
plan at exhibit 28 and the survey plan, I find that the claim of the
appellants cannot be lightly discarded. But however, this exercise will
have to be examined only after appointing a Commissioner in terms of
Order 26 rule 9 of the Civil Procedure Code to visit the disputed property
and examine whether in fact there is any encroachment claimed by the
appellants. No doubt, after such report is produced the parties can cross
examine such Commissioner if they so desire in accordance with law.
The Lower Appellate Court will have to take a fresh decision as to
whether the appellants are entitled for any relief as prayed for.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.81 OF 2006
 Mrs. Fatima Gomes Furtado,

Versus
 Smt. Indirabai Vinayak Lotlikar,

CORAM : F.M. REIS, J.
DATE : 4th SEPTEMBER, 2015
Citation; 2016(2) MHLJ905

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Whether Court should appoint Commissioner under Order 26 Rule 9 of CPC for demarcation of Land?

 Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. The appellate court found that 

the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the 

nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

Supreme Court of India

Haryana Waqf Board vs Shanti Sarup & Ors on 16 July, 2008

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Court commissioner when can be appointed?

 Bhangale, J., F.M. Reis, J., have also held that in case of  dispute 
of encroachment of a site, an appointment of Court Commissioner who could be City 
Survey Officer or Cadastral Surveyor for taking joint measurement of the property 
owned by the plaintiff and defendant for the purpose of local investigation under 
Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just 
decision of the case. It has also been held by this Court that merely because a Court 
Commissioner is appointed, it will not prejudice the interest of either of the parties. It 
has   been   held   that   if   any   of   the   parties   is   aggrieved   by   the   report   of   the   Court 

Commissioner, an opportunity would be available to that party to cross examine the 
Court Commissioner and to point out as to how his conclusions were not correct. It 
has further been observed that the party who was not aggrieved would also prove 
how his conclusions are correct. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6497 OF 2009

Kolhapuri Bandu Lakade V/s. Yallappa Chinappa Lakade, Decd.,
Thru’ Pooja @ Poojari Y. Lakade & Ors.

    CORAM : B.R. GAVAI, J.

    DATE : 14    MARCH, 2011.
   
Citation; 2011 (3) ALL M R 599

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