Appointment of Local Commissioner to Ascertain Truth in Property Damage Dispute: Himachal Pradesh High Court - 2026-05-31

Bridging the Evidentiary Gap: When Truth Overrides Procedural Latches in Civil Suits

In a significant ruling that underscores the court's role as a seeker of truth, the High Court of Himachal Pradesh has redirected the course of a long-standing property dispute. Justice Vivek Singh Thakur, presiding over Dalip Singh and another v. Khatri Ram and another , intervened to allow the appointment of a local commissioner to assess property damage, emphasizing that procedural lapses—particularly when stemming from a lack of legal advice—should not obstruct the pursuit of justice.

The Backdrop: A Decade-Long Dispute

The मामला (matter) traces back to a suit for the recovery of ₹7,00,000 in damages. The plaintiff initiated the claim, alleging that illegal digging by his neighbors (the current petitioners) beneath and adjacent to his residence caused structural failure, rendering the property uninhabitable. After a trial, the lower court decreed in favor of the plaintiff, relying heavily on a private expert report. The defendants, asserting they were illiterate and poorly advised during the initial trial phase, moved to the appellate stage, filing an application under Order 26 Rule 9 of the Code of Civil Procedure (CPC) to have the site inspected by an independent expert from the Public Works Department.

The Conflict: Efficiency vs. Accuracy

The plaintiff vehemently opposed the application, arguing that a commission after twelve years of litigation was merely a tactic to create new evidence. He contended that the original expert report remained unchallenged and that the appellate court should not facilitate a fishing expedition.

The petitioners, however, argued that their status as laborers meant they lacked the resources and expertise to challenge technical findings initially. They maintained that if the damage is indeed permanent, the truth remains physically visible today and an objective assessment by a government engineer would provide the necessary clarity for the court.

Legal Analysis: The Primacy of "Substantial Justice"

The Himachal Pradesh High Court found the circumstances strikingly similar to the Supreme Court’s precedent in Radhey Shyam Rastogi v. Ashish Kumar . In that case, the Supreme Court held that when a verdict hinges on the technical condition of a property, an independent expert report is not an attempt to collect evidence for a party, but a tool for the Court to arrive at a "proper finding."

Justice Thakur distinguished the present case from procedural rigidities, noting: > "It is the duty of the Court to ascertain the truth and for the lapse on the part of the Advocate, particularly keeping in view the status of the parties, should not come in the way for doing substantial justice after ascertaining the truth."

Key Observations

The judgment offers a firm directive on the court's duty to facilitate, rather than merely document, justice. Some pivotal reasoning included:

• On the nature of Local Commission: "It cannot be said stricto senso that appointment of Local Commissioner... would be collection of evidence by the Court, rather... a report of an independent Engineer/Commissioner would help the Court for coming to proper finding."
• On the Court's Discretion: "Further, the Local Commissioner/Engineer shall not restrict his spot inspection... but he is also expected to incorporate any further additional relevant facts, information, observation or assessment necessary."
• On Preventing Prejudice: "Either of the parties should not suffer for long span of time or take advantage of lapse between the damage alleged to have been caused and the inspection/assessment by the Local Commissioner/Engineer."

The Road Ahead

The High Court has ordered the Additional District Judge, Paonta Sahib, to appoint an expert from the Public Works Department (Building & Roads) to inspect the site and submit a report within six weeks. The commissioner is tasked with verifying the nature of the damage—whether it is permanent, whether it could have been prevented at the time of construction, and if the impact is still ascertainable.

For future cases, this ruling acts as a reminder that while civil procedure rules are enacted for order, they are ultimately subordinate to the Court's mandate of ensuring a fair resolution based on facts rather than technical oversights. The parties have been directed to appear before the Trial Court on July 28, 2025, to proceed with the appointment.