IMPORTANT POINT
A commission under Order 26 Rule 9 CPC can only be appointed after evidence is presented by both parties in a civil suit.

JUDGMENT :

VIVEK BHARTI SHARMA, J.

1. By means of present writ petition, petitioner has sought quashing of order dated 01.07.2024 passed by District Judge, Pauri Garhwal in Civil Revision No. 22/2023 Smt. Rekha Suman vs. Janardhan Prasad as well as the order dated 25.08.2023 passed by Civil Judge (Sr. Div.) Pauri.

2. Learned counsel for the petitioner/plaintiff would submit that the petitioner/plaintiff filed a civil suit before Civil Judge (S.D.) Pauri for a decree permanent injunction against the respondent/defendant on the ground that the petitioner/plaintiff had purchased the land in question way back in the year 1997; that, she was posted as Lecturer in District Saharanpur, State of U.P., therefore, she could not look after the suit property; that, during her stay outside, respondent/defendant took the benefit of it and encroached upon part of suit property; that, the respondent/defendant filed the written statement; that, thereafter, the petitioner/plaintiff filed application under Order 26 Rule 9 of CPC for appointment of a Survey Commissioner to demarcate exact area upon which respondent/defendant has encroached upon; that, the respondent/defendant filed objections to this application; that, the learned trial court vide impugned order dated 25.08.2023, dismissed the application of the petitioner/plaintiff; that, being aggrieved, revision was preferred, which was also dismissed vide impugned order dated 01.07.2024, hence, this writ petition.

3. Learned counsel for the petitioner/plaintiff would submit that to get the exact area of land on which the respondent/defendant has encroached upon it is imperative to issue a Commission but the Trial Court failed in appreciating the provisions of Order 26 Rule 9 CPC and committed illegality by dismissing the application. In support of his case, he would place reliance on a judgment rendered by Hon’ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup & Others, (2008) 8 SCC 671 and has referred Para-6 which is quoted as under:

“It is also not in dispute that even before the appellate court, the appellate Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.”

4. Heard learned counsel for the petitioner and perused the material available on file as well as gone through the judgment referred above.

5. It would be apt to discuss Order 26 Rule 9 of C.P.C. which is quoted hereunder:

“9. Commission 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.”

6. The language of Order 26 Rule 9 CPC is very plain and simple, according to which, if any court deems it proper to appoint a commission for the purpose of clarification of any issue in dispute, may appoint a commission. That any clarification requires only after the evidences are produced by both the parties. The parties in suit must prove their case by way of evidence and if the court wants that any issue or matter in dispute requires any clarification or elucidation it may appoint a commission meaning thereby that the purpose of Order 26 Rule 9 CPC is not to assist a party to get the evidence or to get the knowledge about the situation at the spot which the party itself is supposed to collect.

7. In the present case, the petitioner/plaintiff and respondent/defendant h