Understanding the Evidentiary Status of Commission Reports Issued Under Order 39 Rule 7 CPC

In the realm of civil litigation, the appointment of a Court Commissioner is a standard mechanism to assist the judiciary in visualizing property disputes or ensuring the preservation of evidence. However, when a party attempts to call that Commissioner as a witness to prove a report filed under Order 39 Rule 7 of the Code of Civil Procedure (CPC), complex procedural questions arise. Many litigants often wonder: does this report automatically become admissible evidence, and is the Commissioner subject to cross-examination like any other witness?

The legal reality is far more nuanced than a simple yes or no. While the Court possesses wide discretion in how it utilizes these reports, the legal framework governing Order 39 Rule 7 differs significantly from the provisions used for local investigations, such as those under Order 26.

The Purpose of Order 39 Rule 7

To determine whether a Commissioner can be examined as a witness, one must first understand the specific purpose of Order 39 Rule 7. This provision is primarily designed for the detention, preservation, or inspection of property that is the subject matter of a suit. It is an enabling provision that allows the Court to intervene, when necessary, to safeguard the status quo of the property.

Crucially, this provision is not intended to function as a shortcut for evidence collection. As observed in judicial precedents, The distinction is important because Order 39 Rule 7 is an enabling provision allowing the Court to order inspection, not to collect evidence for a party

Mayur Sakharam Paricharak VS Ramesh Haridas Bhise - Bombay (2022)

Why the Commissioner is Not Typically a Witness

The fundamental misunderstanding often lies in equating a report under Order 39 Rule 7 with a report under Order 26 Rule 10. Under Order 26, a Commissioner is appointed for a local investigation to elucidate matters in dispute, and their report typically forms part of the record and can be proved by examining the Commissioner. However, the same evidentiary weight is not automatically granted to an Order 39 Rule 7 report.

Courts have clarified that A Pleader Commissioner's report under Order 39 Rule 7 is not evidence in the suit in the same manner as a Commissioner's report under Order 26 Rule 10; it is used for a limited purpose of inspection, detention, or preservation and cannot be treated as a piece of evidence to prove facts in issue

Ramakrushna Nayak VS Manoj Kumar Behera - Current Civil Cases (2025)

Because the Commissioner is an officer of the Court, they are generally not viewed as a witness whose evidence is to be taken or challenged through the traditional adversarial process of examination and cross-examination. Attempting to call the Commissioner as a witness in this context may be viewed as an improper attempt to use the Court’s inspection mechanism to create evidence for a party's case. As one court noted, The Court cannot use Order 39 Rule 7 as a mechanism to gather evidence for a party, and any attempt to do so is an improper exercise of jurisdiction 1977 0 Supreme(Cal) 402.

The Role of Judicial Discretion

While a rigid rule prevents the conversion of inspection reports into standard evidentiary documents, the Court retains discretion in how it relies on the information provided by the Commissioner. The Court may accept and rely upon the inspection report for the limited purpose of deciding the specific interlocutory application for which it was commissioned.

In cases where the nature and condition of the property are in dispute, the Court may choose to rely on the Commissioner's report to form its own opinion. However, this relies on the Court's assessment of the report’s utility, not on the testimony of the Commissioner. An opposing party generally cannot compel the Court to treat the report as substantive evidence or force the Court to call the Commissioner as a witness to prove the contents of that report

Ramakrushna Nayak VS Manoj Kumar Behera - Current Civil Cases (2025)

Divergent Judicial Interpretations

It is important to note that the application of this law can vary based on jurisdictional precedents. While the prevailing view emphasizes the limited nature of these reports, some courts have adopted a more expansive interpretation. For instance, some judicial observations suggest that An inspection report made under Order 39, Rule 7 CPC would tantamount to an evidence, as it would be taken on record, marked as an Exhibit, relied upon by the parties, and subject to cross-examination 2014 0 Supreme(Raj) 270.

This divergence highlights why counsel must be extremely careful. Even where a court might lean toward treating such reports as evidence, it is almost never a right to examine the Commissioner. It is typically a matter of the Court’s procedural approach. If a party wishes to ensure that certain facts regarding the property are admitted as evidence, relying solely on an Order 39 Rule 7 report is risky. The more robust legal strategy is often to lead independent evidence—such as testimony from experts or site witnesses—to prove the condition of the property, rather than relying on the inspection report as a substitute for substantive proof.

Recommendations for Counsel and Litigants

When navigating the complexities of inspection reports, parties should consider the following:

• Distinguish the Purpose: Clearly differentiate in your submissions whether the Commission was appointed for simple inspection and preservation (Order 39 Rule 7) or for a local investigation into facts (Order 26 Rule 9). The evidentiary weight differs significantly between these two.
• Focus on the Record: If you are the party relying on the report, focus on the Court’s discretionary power to utilize the inspection for deciding the interlocutory application, rather than attempting to treat the report as a prove-all document for the entire suit.
• Lead Independent Evidence: Do not assume the Commissioner's report will be enough. If the condition of the property is a material fact, ensure you have your own witnesses and relevant documents to support your claims.
• Avoid Compulsion: Understand that you likely cannot force the Court to examine the Commissioner as a witness. Requests to do so may be denied if the Court determines that the report was intended for a limited, administrative purpose.

Conclusion

The question of whether a Commissioner under Order 39 Rule 7 can be called as a witness is answered by the nature of their role: they are an arm of the Court, not a witness for the parties. While the report may have evidentiary value in a limited sense—particularly for the specific application at hand—it does not automatically grant a right to examine the Commissioner. Litigants should approach these reports as aids to the Court's decision-making process during interlocutory stages, rather than as a primary source of evidence to prove disputed facts. If a party needs to establish critical facts about the property, they should lead their own, independent evidence.