Court’s Decision
The Karnataka High Court, through Justice S. Vishwajith Shetty, set aside the trial court’s order appointing a Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, in a property dispute concerning agricultural land in Tarikere Taluk. The Court held that the trial court had erred in allowing a commissioner’s appointment after the completion of evidence, without the respondent establishing any prima facie right or title over the disputed property.
In a strongly worded order, the Court observed that “parties cannot be permitted to collect evidence in the nature of a commissioner’s report in the absence of prima facie material”, thereby reiterating that commissions cannot be misused as tools for fishing inquiries once trial proceedings have concluded.
The writ petition was consequently allowed, and the impugned order dated 17 October 2017 passed by the Additional Civil Judge and JMFC, Tarikere, in O.S. No. 92 of 2013 was quashed.
Facts
The dispute arose from a civil suit filed in 2013 by the respondent before the Additional Civil Judge and JMFC, Tarikere, seeking a declaration of ownership and possession of 20 guntas of land in Survey No. 49/p of Bavikere Village, Lakkavalli, Tarikere Taluk.
The respondent claimed that her late husband had been in unauthorized occupation and cultivation of 2 acres and 20 guntas of the said land and had later applied for regularization. The jurisdictional Tahsildar, by an order dated 30 August 1980, regularized 2 acres in favour of the respondent’s husband, who subsequently sold this portion to the petitioner’s father under a registered sale deed.
However, the respondent alleged that the petitioner, claiming through his father, had encroached upon the remaining 20 guntas, which, according to her, was retained by her husband. She thus sought ownership and possession of the 20 guntas through the suit.
After both sides had led their evidence, the respondent moved an interlocutory application (I.A. No. IV) under Order XXVI Rule 9 read with Section 151 of CPC, praying for the appointment of a Court Commissioner to measure the land and determine the extent of alleged encroachment. The trial court allowed the application and appointed the Surveyor, Tarikere, as Commissioner, prompting the present writ petition before the High Court.
Issues
- Whether the trial court was justified in appointing a Court Commissioner under Order XXVI Rule 9 CPC after completion of evidence.
- Whether the respondent-plaintiff had established any prima facie title or right over the disputed 20 guntas to warrant such an appointment.
- Whether appointment of a commissioner at this stage amounted to collection of evidence, contrary to law.
Petitioner’s Arguments
The petitioner contended that the trial court had erroneously exercised its jurisdiction by allowing the application after both parties had concluded their evidence. He argued that Order XXVI Rule 9 CPC is intended to assist the court in elucidating factual matters—not to gather evidence on behalf of any party.
The petitioner pointed out that the respondent’s husband had been granted only 2 acres of land, which he had sold to the petitioner’s father through a registered sale deed for valid consideration. The respondent’s claim over the additional 20 guntas was unsupported by any grant, record, or title, and the plaint itself did not plead ownership or possession over that portion.
It was therefore argued that the Commissioner’s appointment amounted to permitting the respondent to fish for evidence that could not be produced through proper proof. The petitioner maintained that the trial court’s order was illegal, arbitrary, and unsustainable, as the respondent had failed to show any prima facie material establishing her entitlement.
Respondent’s Arguments
The respondent, though served, remained unrepresented before the High Court. However, her position as pleaded before the trial court was that the measurement and inspection by a commissioner were necessary to ascertain whether the petitioner had encroached upon the 20 guntas of land which she claimed belonged to her husband and consequently to her.
She contended that since the boundaries of the property were disputed, the appointment of a commissioner was essential for proper adjudication and to avoid multiplicity of proceedings.
Her earlier submission before the trial court emphasized that the commissioner’s report would assist the court in clarifying the physical position of the property and was thus necessary for doing complete justice between the parties.
Analysis of the Law
The Court analyzed the legal framework under Order XXVI Rule 9 CPC, which empowers courts to issue a commission for local investigation in cases where such examination is required for elucidating matters in dispute. However, the Court clarified that this provision is not a substitute for evidence, nor can it be used by a party to fill evidentiary gaps or create new evidence after the trial has concluded.
Justice Shetty emphasized that appointment of a commissioner must be based on prima facie material demonstrating the necessity of such investigation. The Court observed that in this case, the respondent had failed to produce any document or pleading indicating her ownership or title to the 20 guntas of land.
Thus, there was no foundational basis for directing a measurement of the disputed land, as the claim itself lacked legal substance. Allowing a commissioner at this stage, after evidence was recorded, amounted to reopening the case for evidence collection, which is contrary to the settled legal position.
Precedent Analysis
The Court referred to established principles governing Order XXVI Rule 9 CPC, drawing from precedents where higher courts have consistently held that a commission cannot be issued merely for collection of evidence. While no specific citations were explicitly mentioned in this order, the reasoning aligns with leading judgments such as:
- H.S. Venkatesh v. M. Muniyappa (Karnataka HC) – holding that a commissioner cannot be appointed merely to gather evidence.
- Shreepat v. Rajendra Prasad (2000) 7 SCC 389 – where the Supreme Court held that the commissioner’s role is limited to assisting the court, not to supplant or supplement evidence.
- Ram Lal v. Salig Ram (AIR 1970 SC 1745) – affirming that a commission is not a mechanism to fill in gaps in evidence.
By applying these principles, the Court found that the trial court’s order was contrary to established law.
Court’s Reasoning
The High Court observed that the respondent’s claim lacked legal foundation, as the records clearly indicated that only 2 acres were granted to her husband, which were already sold. There was no evidence of any residual right or ownership over the remaining 20 guntas.
Justice Shetty held that “it is trite that parties cannot be permitted to collect evidence in the nature of a commissioner’s report in the absence of prima facie material before the Court.” Since the application under Order XXVI Rule 9 CPC was filed after both sides had led evidence, the trial court should have rejected it outright.
By allowing such an application, the trial court had effectively enabled one party to reopen proceedings and attempt to fill evidentiary lacunae, which goes against the principles of fair procedure. The High Court, therefore, concluded that the order was unsustainable in law and required interference.
Conclusion
The writ petition was allowed. The order dated 17 October 2017 passed by the Additional Civil Judge and JMFC, Tarikere, in O.S. No. 92 of 2013 allowing I.A. No. IV under Order XXVI Rule 9 CPC was quashed.
The Court reaffirmed that appointment of a commissioner cannot be used as a device to collect evidence after trial, and such requests must be supported by clear pleadings and prima facie material. The order serves as a reminder to lower courts to exercise discretion cautiously and judicially when dealing with applications under Order XXVI Rule 9.
Implications
This decision strengthens the principle that commissions under Order XXVI Rule 9 CPC must not be misused for evidence collection. It clarifies that such applications are procedural aids, not investigative tools, and can only be invoked when necessary for clarifying disputed facts supported by pleadings and documents.
The ruling will guide trial courts to scrutinize the timing and purpose of commissioner applications and discourage litigants from filing them post-trial as a tactic to delay proceedings or rectify weak cases.
FAQs
1. When can a court appoint a commissioner under Order XXVI Rule 9 CPC?
A court may appoint a commissioner only when a local investigation is necessary to elucidate disputed facts—such as boundaries or physical conditions—but not to collect evidence or assist a party in proving ownership.
2. Can a commissioner be appointed after evidence is completed?
No. Once both parties have completed their evidence, the appointment of a commissioner is impermissible, as it effectively allows reopening of the trial and collection of new evidence.
3. What did the Karnataka High Court hold in this case?
The Court held that the trial court’s order appointing a commissioner was erroneous because the respondent failed to show prima facie right or title, and the application was filed after evidence was concluded.
