Appointment of Court Commissioner Under Order XXVI Rule 9 CPC Not Barred by Pre-Trial Stage: Bombay High Court - 2026-06-02

Bridging the Fact Gap: Bombay High Court Validates Early Appointment of Court Commissioners in Land Disputes

In a significant ruling concerning the procedural flexibilities in civil litigation, the Bombay High Court has affirmed that trial courts possess the authority to appoint a Court Commissioner, such as a cadastral surveyor, even before the formal framing of issues or the commencement of trial. The decision emphasizes that the primary objective of the Code of Civil Procedure (CPC) is to facilitate the determination of facts rather than adhering to rigid, premature timing constraints.

The Backdrop: A Claim of Encroachment

The dispute arose from a suit filed by the plaintiff, holder of land in Mauje Savleshar, Tal Mohol, Solapur , claiming that the defendant had encroached upon approximately 7 to 8 gunthas of the suit property. To substantiate this claim, the plaintiff sought the appointment of a court-commissioned surveyor to measure the lands and establish boundaries.

The trial court, recognizing the necessity of an expert report to clarify the contested site measurements, allowed the application. The defendant challenged this order in the Bombay High Court , arguing that the court had acted prematurely by bypassing the stage of framing issues.

The Conflict of Procedural Timing

Counsel for the petitioner relied on past High Court judgments— Sitaram Suklal Patil v. Vasudeo Suklal Patil and Shantaram Dattatray Kekan v. Bhausaheb Karbhari Kekan —contending that the appointment of a Court Commissioner at the very inception of a suit is legally flawed. The petitioner argued that such an exercise is premature until the evidence stage has begun.

Conversely, the respondent argued that when a suit revolves around physical boundary disputes and specific allegations of encroachment, the appointment of a surveyor is a practical necessity that assists the court in reaching a just conclusion.

Judicial Reasoning: Elucidating the Controversy

Addressing the matter, the Court held that the provisions of Section 75 and Order XXVI Rule 9 of the CPC contain no statutory "restraint" on the timing of such appointments. Justice N.J. Jamadar clarified that the "elucidation of the matter in controversy" is not synonymous with the "elucidation of evidence provided by the parties."

The Court reasoned that imposing a "cast iron rule" prohibiting early appointments would inappropriately throttle the court’s ability to gather the information necessary for fair adjudication. Highlighting the necessity for expert measurement in boundary disputes, the Bench reaffirmed that objective technical reports are vital for deciding the lis (dispute) in a just manner.

Key Observations

• "From the text of Section 75 and Order XXVI Rule 9 of the CPC , restraint on the power of the Court to appoint the Court Commissioner qua a particular stage of the proceeding cannot be discerned."
• "To lay down a cast iron rule that the Court commissioner cannot be appointed before the parties have adduced evidence would be, in effect, disabling the Court from getting assistance it requires for the determination of the controversy between the parties."
• "Where the question is of removal of encroachment and demarcation of boundaries, it is necessary to have a joint measurement of the adjoining lands."

The Final Verdict: Efficiency in Justice

Dismissing the Writ Petition, the Bombay High Court upheld the trial court's order. The decision serves as a reminder to the legal fraternity that procedural rules are tools for the advancement of justice, not obstacles to the discovery of truth. By allowing the survey to proceed, the court ensures that the trial moves forward with a clear, expert-verified foundation, potentially shortening the duration of the litigation by resolving the primary factual dispute at the outset.