In CR No.2884 of 2022 (O&M)-PUNJ HC- Order 26 Rule 6 CPC empowers Court to appoint Local Commissioner for elucidating any matter in dispute: P&H HC Justice Manjari Nehru Kaul [26-07-2022]

Read Order: Harish Kumar Kochar v. Jatinder Kumar & another

Monika Rahar

Chandigarh, August 1, 2022:  The High Court of Punjab and Haryana has upheld the order of the Trial Court allowing the plaintiff’s application under Order 26 Rule 9 CPC for appointment of a Local Commissioner to submit a report on the width of the road or street abutting the suit property and its adjoining property.

The  Single Judge Bench of Justice Manjari Nehru Kaul also opined “a perusal of the said provisions leaves no manner of doubt  that a Court can appoint a Local Commissioner for the purpose of elucidating any matter in dispute.”

Essentially, in this case, the petitioner/plaintiff filed the suit in question for permanent injunction to restrain the respondents from encroaching upon a 40 feet  wide road (from its front side) abutting the western side of the plot of the plaintiff. 

The respondent/defendant in his written statement, disputed the width of the road on the western portion of the plot of the petitioner/plaintiff to be 40 feet wide and further alleged that the boundaries of the plot of the petitioner/plaintiff were incorrectly  mentioned.

Thus, an application under Order 26 Rule 9 CPC read with Section 151 CPC for the appointment of a Local Commissioner was filed. 

In response, the Trial Court allowed the said application and appointed a Local Commissioner with direction to visit the disputed spot and submit his report about the width of the road or street abutting the suit property and its adjoining property.

The impugned order was assailed on the ground that the trial Court while passing the said order, failed to appreciate that the application under Order 26 Rule 9 CPC for appointment of a Local Commissioner was moved by the respondent with an ulterior and oblique motive to create evidence in his favour. 

He submitted that the respondent was  trying to fill in a lacuna in their written statement by getting a Local Commissioner appointed, as they had failed to deny the site plan annexed with the sale deed. He vehemently argued that the report of the Local Commissioner would amount to collection of evidence on behalf of the respondents which could not be permitted to be done, as it was patently illegal and contrary to the settled law. 

The Court, after considering the above-stated, perused the provisions of Order 29 Rule 9 CPC and opined that such perusal leaves no manner of doubt that a Court can appoint a Local Commissioner for the purpose of  elucidating any matter in dispute.

Coming to the present case, the Court opined that the Local Commissioner was appointed by the trial Court only for giving his report on the width of the road/street abutting the suit property and also the adjoining property and not to report on the matter of possession or of alleged encroachment.

Thus, Justice Kaul opined that in the  circumstances, it cannot be said that appointment of the Local Commissioner by the trial Court would in any manner amount to creating or collecting any evidence. 

“This Court thus, does not find the trial Court in error and rather it was perfectly justified in exercising its discretion to appoint a Local Commissioner as it would in the facts and  circumstances help in the proper and effective adjudication of the matter in issue“, the Court held. 

Accordingly, the instant petition was dismissed.