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When Discretion Trumps Demand: on Commission Appointments
In a significant ruling, the has reinforced the principle that a litigant cannot demand the appointment of a as a matter of right. Presiding over , Hon'ble Dr. Yogendra Kumar Srivastava, J. , held that the court’s power to appoint a commissioner for local investigation is a purely discretionary procedural tool, rather than a mandatory obligation, even when the issue in question pertains to the court's own .
The Conflict: "New Construction" or Old Premises?
The dispute originated from a landlord-tenant tussle in Agra. The landlord sought the release of a ground-floor shop under the
. The tenant, in an effort to stall these proceedings, argued that the shop was part of a "newly constructed" triple-storeyed RCC building, exempted from the Act. To prove this, the tenant sought the appointment of a
to inspect the property’s physical characteristics—specifically hoping to confirm the existence of RCC pillars and beams—arguing that this fact went to the
"root of the court's
."
Both the
and the
had previously rejected these applications, prompting the tenant to move the High Court under
.
Arguments: A Procedural Tug-of-War The petitioner argued that without the commissioner’s report, he was deprived of an effective opportunity to prove his defense. He maintained that determining the age of the building was a threshold that necessitated technical observation on-site.
Conversely, the respondent contended that the proceedings under the Rent Act are , typically resolved through affidavits and existing documentary evidence. The respondent argued that the petitioner's application was a ""—a thinly veiled attempt to fill in his defense by asking the court to gather evidence on his behalf, which exceeds the intent of Order XXVI Rule 9 of the .
Legal Analysis: The Limits of Procedural Aid The High Court drew a sharp, clear line between the power to conduct an inquiry and the obligation to gather evidence. Referencing precedents like and , the Court emphasized that a commission for local investigation is meant to assist the court when matters cannot be resolved by the evidence already on record—it is not an instrument for a party to outsource the .
"The significance of the issue cannot determine the procedure by which it is to be adjudicated,"
the Court remarked. Simply because a question is "jurisdictional" does not mean a party is exempt from proving it through their own
.
Key Observations
*
On Judicial Discretion
:
"The language employed [in Order XXVI Rule 9 CPC] is clearly enabling and discretionary, not mandatory. Consequently, no litigant possesses a
to insist upon appointment of a Commissioner."
*
On Evidence Gathering
:
"The power to issue a commission is discretionary and cannot be exercised to enable a litigant to collect evidence, fill
in its case or embark upon a fishing or
."
*
On the Jurisdictional Plea
:
"Whether the premises are exempt from the operation of the Act is undoubtedly a jurisdictional question; nevertheless, it remains a question to be decided by the competent authority upon appreciation of the legally
."
*
On Procedural Intent
:
"Appointment of a Commissioner is only a procedural aid to facilitate adjudication where necessary and cannot be elevated to a mandatory requirement merely because the issue involved is jurisdictional in nature."
The Verdict: A Curb on Procedural Overreach The High Court ultimately dismissed the petition, affirming the lower courts' decisions. By upholding the rejection of the commissioner appointment, the Court sent a clear message: litigants must come armed with their own evidence. The court’s role in local inspection is to clarify ambiguities, not to compensate for a lack of foundational proof. For future cases, this ruling acts as a reminder that the judicial process cannot be weaponized through procedural applications to delay or shift the evidentiary burden in property disputes.
