Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. entertained a writ petition filed under Article 227 of the Constitution of India, where the petitioner had challenged the order passed by the Civil Judge, where the application for appointment of a Revenue Officer as a Local Commissioner under Order 26 Rule 9 CPC was allowed.

Brief facts necessary for the adjudication of the case were, that the respondent/plaintiff had filed a suit against the petitioners/defendants for a decree of an injunction for restraining the defendants from raising any construction, dispossessing, interfering, cutting, felling and removing the trees standing upon the suit land. In an alternative suit, the plaintiff had also prayed for possession of the said suit property. Subsequently, during the pendency of the said suit, the plaintiff had filed an application under Order 26 Rule 9 of the Code for appointment of any Revenue Officer as Local Commissioner for locating the exact nature and extent of encroachment by the defendants and fixing boundaries of the suit land.

The counsel for the plaintiff averred in the application that the parties had strained relation with each other; despite a status quo order was passed, the defendants interfered in the suit land, and they also encroached upon the suit land, hence appointment of a Local Commissioner was necessary for locating the exact nature and extent of encroachment by the defendants.

On the contrary, the counsel for the defendants resisted the application and submitted that it was always open to the plaintiff to have had approached the Revenue Authorities for getting the land demarcated and the Court was not to create evidence for either of the parties. It was further the case of the defendants that they were not interfering in the suit land nor they had any intention to do so and they were in possession of their property pursuant to the recent partition having entered into between the parties and the plaintiff was stopped from filing the application. It was denied by the defendants that they were encroaching upon the suit land, as alleged.

Trial Court allowed the application and held, that as issues were not yet framed in the main suit and as proceedings in the case were at a preliminary stage, therefore, if a Local Commissioner in the case was appointed, no prejudice was to be caused to the defendants, rather it was a help in the proper and final adjudication of the dispute between the parties.

But the defendant was not satisfied by the order of the Trial Court, hence, filed the instant petition, it was argued that the order was not sustainable in the eyes of law as was passed in hot haste as the issues were not framed. It was further argued that there was no necessity of such an application being entertained by the learned Trial Court because it was just a mere allegation of the plaintiff that the suit land stood encroached upon by the defendants, onus was upon him to prove the same and it was not for the Court to create evidence in favour of the plaintiff.

The Court contemplated the arguments of the parties and thus, observed that Order 26 Rule 9 of the Code, inter alia, provided that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to, make such investigation and to report thereon to the Court. Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. Hence the Court held that, “This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order.” Hence the order for appointing a Local Commissioner was set aside.[Naseeb Deen v. Harnek Singh, 2019 SCC OnLine HP 1034, decided on 19-07-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of A.K. Rath, J. allowed the petition filed that challenged the order which allowed the appointment of an Amin Commissioner for local investigation under Order 26 Rule 9 CPC for the suit land.

The facts of the case were that the plaintiff-opposite party instituted the suit for declaration of right, title and interest, confirmation of possession and recovery of possession. Case of the plaintiff was that he was the owner of the suit land. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that the plaintiff had no title over the suit land and the defendants purchased the same by means of a registered sale deed. While matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC for the appointment of a commissioner for demarcation of the property. Defendants filed an objection to the same. The Trial Court appointed a commissioner for local investigation. Mr. P.K. Satapathy, the counsel for the petitioners submitted that there was no justifiable reason to appoint a survey knowing commissioner in the factual scenario. The dispute did not pertain to demarcation or identification of the land.

The Court held that since both parties were claiming title over the suit land, it was not per se a ground to appoint a commissioner. The plaintiff could adduce evidence to substantiate the case. The dispute did not pertain to the area or identification or measurement or location of the land. Thus the Court had traveled beyond its jurisdiction in appointing a commissioner. The impugned order was quashed and the petition was allowed. [Regional Coop. Marketing Society v. Amarnath Saraph, 2019 SCC OnLine Ori 172, Order dated 19-04-2019]