Analysis of Order XXVI Rule 9 CPC

An Analytical Exposition of Order XXVI Rule 9 of the Code of Civil Procedure, 1908: Principles Governing Local Investigations in Indian Civil Litigation

I. Introduction

Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC) empowers civil courts in India to issue commissions for local investigations. This provision serves as a crucial procedural tool, enabling courts to obtain firsthand information about disputed properties or other relevant local matters that are essential for a just and effective adjudication. The primary objective of such a commission is to elucidate any matter in dispute by means of a physical inspection and report, thereby assisting the court in understanding complex factual scenarios that may not be adequately conveyed through oral or documentary evidence alone. The power vested in the court under this rule is discretionary and must be exercised judiciously, keeping in mind the specific circumstances of each case. This article seeks to provide a comprehensive analysis of Order XXVI Rule 9 CPC, drawing upon statutory provisions, significant judicial pronouncements, and established legal principles in Indian law to delineate its scope, purpose, procedural requirements, and limitations.

II. The Statutory Mandate of Order XXVI Rule 9 CPC

Order XXVI Rule 9 of the CPC is titled "Commissions to make local investigations" and stipulates:

"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, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, 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: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

The key components of this rule are:

  • The court's subjective satisfaction that a local investigation is "requisite or proper."
  • The primary purpose being "elucidating any matter in dispute."
  • Specific enumerated purposes such as ascertaining market value, mesne profits, damages, or annual net profits.
  • The discretionary power of the court ("may issue a commission").
  • The appointment of a fit person as Commissioner.
  • The requirement for the Commissioner to report back to the court.

This provision underscores the court's inherent need to gather accurate information directly from the locus in quo when deemed necessary for resolving disputes effectively (S. Singa Reddy (Died) And Others v. K. Ramachandra Reddy, 2005 SCC ONLINE AP 1011).

III. Judicial Interpretation: Purpose and Scope of Local Investigations

A. Elucidating Matters in Dispute

The cornerstone of Order XXVI Rule 9 CPC is the "elucidation of any matter in dispute." Courts have consistently held that the appointment of a Local Commissioner is intended to assist the court in understanding the physical features of a property, identifying boundaries, or clarifying ambiguities that cannot be resolved merely by perusing pleadings and evidence on record. It is not a tool for parties to gather evidence to fill lacunae in their case (Mrs. Revanti Babubhai Mota Petitioner v. Mrs. Mangala Gokhale, 2015 SCC ONLINE BOM 2857; R. Justin Arulappa Petitioner v. R. Xavier Arulappa, 2009 SCC ONLINE MAD 1442). The Madhya Pradesh High Court in Ashok Kumar Patel And Ors. v. Ram Niranjan Dubey And Ors. (2007 MPWN 3 123) and Gyanchand And Others v. Neeti Manjhi And Another (2021 SCC ONLINE MP 2664) cautioned against appointing commissioners for the purpose of collecting evidence.

Disputes relating to boundaries, encroachment, and identification of property are classic instances where a local investigation is deemed requisite. The Supreme Court in Haryana Waqf Board v. Shanti Sarup And Others (2008 SCC 8 671) observed that in cases of boundary disputes or encroachment, the court should appoint a Local Commissioner. This principle was reiterated by the Madhya Pradesh High Court in Karim Khan v. Mohammed Sharif Khan & Others (Madhya Pradesh High Court, 2016), stating that when parties have diametrically opposite stands on boundaries or maps, a commission under Order XXVI Rule 9 CPC can be exercised to "separate the wheat from chaff." The Kerala High Court in Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co-Operative Society And Others (1996 SCC ONLINE KER 92) set aside a lower court's refusal to appoint a commissioner for inspection and measurement, emphasizing its necessity. Similarly, the Supreme Court in Saraswathi And Another v. S. Ganapathy And Another (2001 SCC 4 694) highlighted the importance of an accurate commissioner's report in resolving property disputes involving alleged encroachment.

However, the court must be satisfied that such an investigation is genuinely for elucidation. If the matter can be decided by evidence adduced by parties, a commission may be refused (Vij Kamagar Sahakari Paisanstha Limited v. Ramkrushna Dhondiram Thorat & Ors, Bombay High Court, 2008). The Rajasthan High Court in Mahaveer Prasad v. The Addl. District Judge, No. 1 (Rajasthan High Court, 2012) noted that a commissioner ought not to be appointed where the burden is on the parties to bring evidence, and the appointment should not facilitate circumventing this duty.

B. Ascertaining Value, Profits, or Damages

Beyond general elucidation, Rule 9 specifically provides for commissions to ascertain the market value of property, the amount of mesne profits, damages, or annual net profits. These are often complex calculations requiring specialized assessment or on-site verification, making a Local Commissioner's report invaluable to the court.

C. Discretion of the Court

The use of the word "may" in Order XXVI Rule 9 CPC signifies that the power to appoint a commissioner is discretionary (S. Singa Reddy v. K. Ramachandra Reddy, 2005; Mahaveer Prasad v. The Addl. District Judge, No. 1, 2012). This discretion, however, must be exercised judicially and not arbitrarily or capriciously. The court must genuinely "deem" the local investigation to be "requisite or proper" (*R. Justin Arulappa v. R. Xavier Arulappa*, 2009). A mechanical appointment without application of mind to the necessity of such an investigation is deprecated.

IV. Procedural Aspects and Admissibility of Commissioner's Report

A. Appointment of Commissioner

A Local Commissioner can be appointed at various stages of the suit, including during the pendency of an appeal, as an appeal is a continuation of the suit (Sridhar Shetty And Others v. Narayana Naika, 2005 SCC ONLINE KAR 428). The Supreme Court in Lekh Raj v. Muni Lal And Others (2001 SCC 2 762) also dealt with a situation where a Local Commissioner was appointed by the High Court in its revisional jurisdiction, and the report was relied upon.

The question of ex-parte appointment of a commissioner has been addressed by courts. The Kerala High Court in Maroli Achuthan, v. Kunhipathumma, . (Kerala High Court, 1966) opined that it is open to the Court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance. The Andhra Pradesh High Court in N. Savitramma And Another v. B. Changa Reddy . (Andhra Pradesh High Court, 1987) held that an Advocate-Commissioner could be appointed ex-parte under Order XXVI Rule 9 CPC or even Order XXXIX Rule 7(1)(a) CPC for noting physical features, if circumstances deem it necessary. However, R. Justin Arulappa v. R. Xavier Arulappa (2009) stressed that the court should record a prima facie finding for the purpose of issuance of commission without notice to the other party.

B. Notice to Parties

Order XXVI Rule 18 CPC mandates that the court shall direct parties to appear before the commissioner, or the commissioner should issue notice to parties. This ensures procedural fairness and allows parties to be present during the local investigation. As observed in Maroli Achuthan v. Kunhipathumma (1966), a violation of Order XXVI Rule 18 CPC might affect the reception of the report as evidence under Order XXVI Rule 10(2) CPC, potentially requiring the commissioner to be examined. Notice under Order XXVI Rule 18 CPC is generally required after the appointment of the commissioner (N. Savitramma And Another v. B. Changa Reddy, 1987).

C. The Commissioner's Report and Its Evidentiary Value

According to Order XXVI Rule 10(1) CPC, the commissioner, after local inspection and reducing to writing any evidence taken, shall return such evidence along with a report in writing to the Court. This report and evidence form part of the record of the suit (Maroli Achuthan v. Kunhipathumma, 1966; Km. Soni v. Spl. Judge P.C. Act Ist/Addl. District Judge Lucknow And Ors., Allahabad High Court, 2023).

However, the commissioner's report is not automatically conclusive. Its probative value is to be assessed by the court like any other piece of evidence (Vij Kamagar Sahakari Paisanstha Limited v. Ramkrushna Dhondiram Thorat & Ors, 2008). Order XXVI Rule 10(2) CPC permits the court, or any party with the court's permission, to examine the commissioner personally in open court regarding matters referred to him, his report, or the manner of investigation (Km. Soni v. Spl. Judge, 2023). If the court is dissatisfied with the commissioner's proceedings, it may direct further inquiry under Order XXVI Rule 10(3) CPC (Km. Soni v. Spl. Judge, 2023). An improperly obtained report, for instance, from a commission appointed without due cause or proper procedure, may be regarded as inadmissible (R. Justin Arulappa v. R. Xavier Arulappa, 2009).

V. Limitations on the Exercise of Power under Order XXVI Rule 9

The power to appoint a Local Commissioner is not unfettered and is subject to certain well-defined limitations:

  • Not for Collecting Evidence: The primary limitation, reiterated in numerous judgments, is that a commission cannot be issued to enable a party to collect evidence to support their case or fill gaps in their evidence (Mrs. Revanti Babubhai Mota v. Mrs. Mangala Gokhale, 2015; R. Justin Arulappa v. R. Xavier Arulappa, 2009; Vij Kamagar Sahakari Paisanstha Limited v. Ramkrushna Dhondiram Thorat & Ors, 2008; Ashok Kumar Patel v. Ram Niranjan Dubey, 2007; Gyanchand v. Neeti Manjhi, 2021; Mahaveer Prasad v. The Addl. District Judge, No. 1, 2012).
  • Not to Determine Disputed Questions of Fact like Possession: Generally, a commissioner cannot be appointed to determine who is in possession of the suit premises if that is a fact to be established by the parties through evidence (Mrs. Revanti Babubhai Mota v. Mrs. Mangala Gokhale, 2015, citing precedents; Ashok Kumar Patel v. Ram Niranjan Dubey, 2007). However, in Mrs. Revanti Babubhai Mota, the court did allow a commission to investigate hardship, indicating that if it aids elucidation, it may be permissible.
  • Not to Circumvent Duty to Lead Evidence: Parties cannot use Order XXVI Rule 9 CPC to bypass their responsibility to adduce evidence in support of their claims (Mahaveer Prasad v. The Addl. District Judge, No. 1, 2012).
  • Repeated Applications: While not strictly res judicata, courts may be reluctant to entertain subsequent applications for a commission on the same grounds if a previous application has been rejected, unless new circumstances warrant it (Gyanchand v. Neeti Manjhi, 2021, where a subsequent application was rejected, partly citing rejection of a prior similar application).

VI. Interplay with Other Provisions

Order XXVI Rule 9 CPC often interacts with other provisions of the CPC:

  • Order XXXIX Rules 1 & 2 (Temporary Injunctions): A Local Commissioner may be appointed to ascertain the existing state of affairs at the suit property to help the court decide an application for temporary injunction (Skynet Enclave Residents Welfare Association & Another Petitioners v. Amritpal Singh & Others S, Punjab & Haryana High Court, 2017; Ashok Kumar Patel v. Ram Niranjan Dubey, 2007). The Madhya Pradesh High Court in Smt. Sarojbala v. Vishal (Madhya Pradesh High Court, 2022) suggested that an application for temporary injunction ought to be decided after the outcome of a pending application under Order XXVI Rule 9 CPC.
  • Order XXXIX Rule 7 (Inspection): This rule also allows for inspection of property. While Order XXVI Rule 9 is for "elucidating any matter in dispute" through a more formal investigation and report, Order XXXIX Rule 7 is often used for interim inspection, detention, or preservation. Ex-parte orders for inspection are permissible under Order XXXIX Rule 7 (Ram Charan And Others v. Murli And Others, Allahabad High Court, 1975; N. Savitramma And Another v. B. Changa Reddy, 1987).
  • Order XXVI Rule 10A (Scientific Investigation): This rule provides for commissions for scientific investigation. The procedure for the commissioner's report and examination under Rule 10A(2) often refers back to the procedure in Rule 10 (Km. Soni v. Spl. Judge, 2023).
  • Order XLI Rule 27 (Additional Evidence in Appeal): When an application for appointment of a commissioner is made at the appellate stage, it may be considered akin to an application for additional evidence, and the principles of Order XLI Rule 27 CPC might be relevant (Sridhar Shetty v. Narayana Naika, 2005; Lekh Raj v. Muni Lal, 2001; Union Of India v. Ibrahim Uddin And Another, 2012 SCC 8 148, which discusses principles of admitting additional evidence at appellate stage).

VII. Reviewability of Orders under Order XXVI Rule 9

An order passed under Order XXVI Rule 9 CPC, either allowing or rejecting an application for the appointment of a Local Commissioner, is generally considered interlocutory. The Uttarakhand High Court in SHUBHRA PANDE v. SMT DURGA PANDE (Uttarakhand High Court, 2023) observed that such an order is neither a "case decided" within the meaning of Section 115 CPC, nor does any revision lie against such an order. However, this does not preclude parties from challenging such orders under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, particularly if there is a patent illegality, jurisdictional error, or manifest injustice (as invoked in Ashok Kumar Patel v. Ram Niranjan Dubey, 2007, citing Surya Dev Rai v. Ram Chander Rai).

VIII. Conclusion

Order XXVI Rule 9 of the Code of Civil Procedure, 1908, stands as a vital instrument in the arsenal of civil courts, designed to facilitate a more informed and just adjudicatory process. Its utility in elucidating complex factual matters, particularly in disputes concerning property identification, boundaries, encroachments, and valuation, is undeniable. The judicial discourse surrounding this provision has consistently emphasized that its exercise is discretionary, aimed at assisting the court, and must not devolve into a mechanism for parties to collect evidence or fill deficiencies in their respective cases. The principles of necessity, propriety, and procedural fairness, including notice to parties and the careful consideration of the commissioner's report, are paramount. While the power is broad, its limitations ensure that it remains a tool for elucidation rather than a substitute for the parties' primary duty to prove their claims. The careful and judicious application of Order XXVI Rule 9 CPC by the courts continues to play a significant role in upholding the objectives of justice and equity in Indian civil litigation.