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ALOK SHARMA
Nihachaldas – Appellant
Versus
Kavita Karamchandani – Respondent
The legal document discusses the scope and discretion of courts under Order 26, Rule 9 of the Civil Procedure Code. The key principle is that while courts have the authority to appoint a commissioner for local investigation to clarify points in dispute, this power is not intended to assist any party in collecting evidence or to become involved in the adversarial process between parties (!) (!) . The discretion to appoint a commissioner is to facilitate a clearer understanding of the matter where evidence is otherwise opaque, not to aid one side over the other (!) (!) .
In the specific case, the court emphasized that the primary burden of proof rests on the party making allegations—in this instance, the plaintiff—regarding unauthorized construction. Since the plaintiff had the burden to prove the allegations, there was no necessity or justification for the court to exercise its discretion to appoint a commissioner for local inspection (!) (!) .
Furthermore, the court clarified that invoking this discretion requires that the purpose be to elucidate points in dispute, not to gather evidence on behalf of a party or to participate in the adversarial process. The order dismissing the application for appointment of a commissioner was found to be lawful and rooted in well-established legal principles (!) (!) .
Therefore, the petition was dismissed, affirming that the court's discretion under Order 26, Rule 9 CPC is limited to clarification purposes and does not extend to assisting a party in evidence collection or entering the arena of dispute between parties.
Alok Sharma, J.— This petition has been filed against the order dated 2.2.2010, insofar as it dismissed the plaintiff’s application under Order 26, Rule 9 CPC.
2. Heard learned Counsel for the Parties: and perused the material available on record.
3. The contention of the counsel for the petitioner-plaintiff (hereinafter ‘the plaintiff’), before the trial court was as also is, before this court, is that the defendant had made unauthorised constructions without the prior permission from the Municipal Corporation Ajmer. He submits that the appointment of commissioner was necessary to make a report in this regard after a local inspection and the learned trial court ought to have exercised its discretion in the facts of the case to appoint a commissioner for making a local inspection and put on the trial court’s record the factual position. The trial court however failed to duly exercise its discretion. This court should under its supervisory powers pass a corrective order.
4. Mr. Arvind Gupta, learned counsel for respondent- defendant No.6 (hereinafter ‘the defendant’) submits that the scope of Order 26, Rule 9 CPC is not to facilitate collection of evidence on behalf of any p
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