Appointment of Advocate Commissioner Does Not Determine Party Rights States Rajasthan High Court Order

The High Court of Judicature for Rajasthan at Jodhpur has reaffirmed the scope and intent of procedural tools available to trial courts during property disputes. In a recent ruling, Justice Farjand Ali clarified that the appointment of an Advocate Commissioner under Order XXXIX Rule 7 of the Code of Civil Procedure (CPC) is a legitimate mechanism for courts to obtain an objective status report, rather than an improper attempt to collect evidence.

Background of the Dispute

The litigation originated from a property conflict in Village Sisarma, Udaipur, between the petitioner, Roshan Lal, and the respondent, Veni Ram. Mr. Lal had filed a suit for a permanent injunction, asserting possession of an abadi plot based on a 1975 patta (land deed) issued to his late father. The petitioner subsequently alleged that the respondent had encroached upon a portion of the land.

While the Trial Court granted initial interim protection to the petitioner, it subsequently allowed an application by the respondent to appoint an Advocate Commissioner. This official was tasked with visiting the site, measuring the boundaries, and documenting the physical features of the disputed area. The petitioner challenged this order before the High Court, arguing that the appointment effectively permitted the respondent to use the court’s authority to gather evidence, which he contended should be left to the standard trial process.

Arguments from the Bench and Bar

The petitioner’s counsel maintained that the Trial Court had committed a manifest error by involving a third party to determine issues of possession and encroachment, which are substantive issues to be proved during the full trial. Conversely, the respondent argued that the inspection was vital for an informed decision on the pending interlocutory injunction application, as it merely records the physical status quo.

Justice Farjand Ali, presiding over the case, observed that the core of the controversy necessitated a clearer understanding of the site’s physical layout, which was not evident from the existing record. The Court emphasized that an inspection Commissioner acts as the "eyes and ears" of the court, tasked with providing a neutral, objective assessment rather than acting as a witness or investigator for either party.

Key Observations

Highlighting the limited scope of such commissions, the Court noted:

  • "The purpose of appointing a Commissioner under Order XXXIX Rule 7 CPC is not invariably to collect evidence on behalf of either party."
  • "A report of the Commissioner merely assists the Court in appreciating the factual matrix and does not, by itself, confer or extinguish any substantive right."
  • "If, for the purpose of effectively considering the prayer for temporary injunction, the learned Trial Court deemed it appropriate to obtain an objective status report ... such exercise cannot be said to be either beyond the ambit of Order XXXIX Rule 7 CPC."

Final Verdict

Finding no jurisdictional error or procedural irregularity, the High Court dismissed the writ petition and upheld the Trial Court’s order. By this decision, the Court has provided essential guidance for practitioners, reinforcing that local inspections of disputed sites are valid judicial aids during the interlocutory stage of a civil suit. The ruling ensures that courts retain the flexibility to accurately assess physical realities on the ground while simultaneously safeguarding the substantive rights of all parties involved until the final adjudication of the dispute.