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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
GURPAL SINGH AHLUWALIA
Gorelal Lodhi S/o Pyarelal Lodhi – Appellant
Versus
State of Madhya Pradesh – Respondent
ORDER :
1. This petition under Article 227 of the Constitution of India has been filed against the order dated 26.08.2023 passed by Civil Judge, Junior Division, Kesli, District Sagar in RCSA No.3/2019, by which an application filed under Order 26 Rule 9 of CPC has been rejected.
2. It is submitted by counsel for the petitioner that the petitioner has filed a suit for declaration of title and permanent injunction. Since the respondents are disputing the existence of a house which is 100 years old, therefore, the petitioner filed an application under Order 26 Rule 9 of CPC for appointment of local commissioner to submit a report with regard to existence of the house.
3. The Trial Court by the impugned order has rejected the application mainly on the ground that local commissioner cannot be appointed for collection of evidence. It is submitted that since the respondents have denied existence of the house, therefore, appointment of commissioner is necessary. Whatever a report will be submitted by the commissioner cannot be termed as evidence and thus, the Trial Court has committed a material illegality by rejecting the application filed under Order 26 Rule 9 of CPC.
4. Per contra, counsel
The court affirmed that a local commissioner cannot be appointed for collecting evidence as it improperly delegates judicial authority, which violates the principles of adjudication.
The appointment of a local commissioner is inappropriate for evidence collection in disputes over property title, as it delegates judicial authority, which must remain with the court.
An order refusing to appoint a local commissioner does not decide any issues or rights in a suit and is therefore non-revisable.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The possession of the petitioner over the suit land was not in dispute, and the age of apple plants would not prove actual possession, leading to the dismissal of the application for appointment of a....
A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.
The central legal point established in the judgment is the non-maintainability of the revision petition under Article 227 of the Constitution, as reiterated from the law laid down in Pritam Singh's c....
The discretion to appoint a local commissioner rests with the court, and the party must lead evidence to prove ownership and possession over the property.
The main legal point established is that relief must be claimed against necessary parties for joinder, and the appointment of a local commissioner cannot be used for evidence collection.
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