Order XXVI Rule 9 of the Code of Civil Procedure (CPC) empowers Indian courts to appoint commissions for local investigations when necessary to elucidate matters in dispute, ascertain property values, or determine mesne profits or damages. This provision ensures that courts can obtain precise and direct information from the locus in quo, facilitating informed and just decisions.

LEGAL PROVISION AND PURPOSE

Order XXVI Rule 9 CPC states:
“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.”

This rule serves multiple purposes:

• Elucidation of Disputed Matters: Clarifies complex issues that cannot be resolved solely through oral or documentary evidence.
• Assessment of Property Value: Determines accurate market values, especially in cases involving property disputes.
• Calculation of Mesne Profits or Damages: Assists in quantifying compensation owed due to unlawful possession or damage.

SCOPE AND APPLICATION

The appointment of a commissioner under this rule is discretionary and depends on the specifics of each case. Courts consider the necessity of a local investigation to resolve the dispute effectively.

For instance, in boundary disputes or cases involving alleged encroachments, a commissioner’s report can provide crucial on-site insights that are otherwise unattainable.

JUDICIAL INTERPRETATIONS

Indian judiciary has delineated the contours of Order XXVI Rule 9 CPC through various rulings:

• In Jaswant Singh v. Meera Devi, the Himachal Pradesh High Court emphasized that the provision should not be used to create evidence. The court held that a party must substantiate its claims through its own evidence and cannot rely on a commissioner to establish its case.

• The Karnataka High Court in Krishnamurthy M. v. K. Narayanaswamy observed that the power to appoint a commissioner is discretionary and should be exercised judiciously, considering the nature of the dispute and the necessity of a local investigation.

PROCEDURE FOR APPOINTMENT

The process for appointing a commissioner involves:

1. Filing an Application: A party to the suit may file an application requesting the court to appoint a commissioner for local investigation.
2. Court’s Discretion: The court evaluates the application to determine if a local investigation is essential for resolving the dispute.
3. Issuance of Commission: If satisfied, the court issues a commission to a qualified individual, directing them to conduct the investigation and submit a report.

LIMITATIONS AND CONSIDERATIONS

While Order XXVI Rule 9 CPC is a valuable tool, courts exercise caution to prevent its misuse:

• Not a Means to Collect Evidence: Courts have consistently held that this provision should not be invoked merely to gather evidence to support a party’s case. The primary responsibility to prove one’s case lies with the parties themselves.
• Avoiding Delays: Unnecessary appointments of commissioners can lead to delays in proceedings. Therefore, courts ensure that such appointments are made only when indispensable for justice.

CONCLUSION

Order XXVI Rule 9 CPC plays a pivotal role in the Indian legal system by enabling courts to obtain on-ground information crucial for adjudication. However, its application is governed by judicial discretion, ensuring that it aids in the delivery of justice without being exploited to create or collect evidence on behalf of litigants.