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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