Local Commissioner appointment can aid in disputes over actual possession when evidence is conflicting.

Order :

ARUN MONGA, J.

1. The petitioners (plaintiffs) seek quashing of the impugned order dated 05.03.2025 (Annexure 5), vide which their application under Order 26 Rule 9 CPC, seeking appointment of a Local Commissioner, was rejected.

2. Brief facts first. Petitioners (Plaintiffs) filed a suit for cancellation of the sale deed dated 19.07.2010, along with an application under Order 39 Rules 1 and 2 CPC, seeking injunction against the respondents from disturbing possession of the suit property.

2.1. The respondents filed a reply, denying the petitioners’ claim, and asserted that they are in possession and the petitioners have no right, title, or interest in the suit land.

2.2. At the stage of respondents’ evidence, the petitioners moved an application under Order 26 Rule 9 CPC, stating that the parties have given conflicting descriptions of the status and possession of the suit land. It was further stated that the petitioners are in possession with a standing wheat crop, a tube well, an electric connection, and a gumti on the land.

2.3. The respondents opposed the application, contending that it was an attempt to collect evidence and denied the petitioners’ claim regarding possession and cultivation.

2.4. The trial Court dismissed the application on 05.03.2025, holding that the facts can be proved through regular evidence and no ground for appointment of Commissioner was made out. Hence, the instant writ petition.

3. Learned counsel for the petitioners submits that the trial Court erred in dismissing the application under Order 26 Rule 9 CPC, as the appointment of a Commissioner was necessary to fairly ascertain the actual status and possession of the suit property, which is disputed by both parties.

4. Having heard learned counsel for the petitioners (plaintiffs), I do not deem it necessary to issue notice to the respondents, as no prejudice would be caused to them by the nature of order which I propose to pass.

5. Ordinarily, this Court refrains from accepting requests for appointment of a Local Commissioner under the garb of assisting the Court to collect or create evidence which is non-existent. However, since in the present case, the dispute is with regard to actual physical possession and existing condition of the suit land, it would be rather appropriate and of assistance to learned trial Court itself if the application is allowed by appointing a Local Commissioner under Order XXVI Rule 9 CPC. For ready reference, Order XXVI Rule 9 CPC is reproduced herein below:-

“9. Commissions to make local investigations – 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:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

6. Perusal of above rule clearly reflects that for the purpose of elucidating any matter in dispute, the Court may issue a Commission to make an investigation and give a report. There is no gainsaying about settled proposition of law that under the garb of Order XXVI Rule 9 CPC, assistance of the Court should not be sought to collect any favourable evidence as onus of proof of their case lies on respective parties by adducing evidence at appropriate stage. But, in the p