No Commissioner in Section 9 Arbitration Proceedings?

In arbitration matters, parties often seek urgent interim relief under Section 9 of the Arbitration and Conciliation Act, 1996. A frequent query arises: Can a Commissioner be appointed in the proceedings of Section 9 of Arbitration Act? Generally, courts refrain from appointing commissioners in such interim proceedings, as they are designed for swift protective measures rather than detailed investigations like local inquiries. This contrasts sharply with regular civil suits, particularly those involving property disputes, where such appointments are not only permissible but often essential. This post delves into the nuances, drawing from judicial precedents and statutory provisions under the Code of Civil Procedure (CPC), 1908. Note: This is general information; consult a legal professional for advice specific to your case.

The Role of Section 9 in Arbitration: Why Commissioners Are Typically Barred

Section 9 empowers courts to grant interim measures before or during arbitral proceedings, akin to temporary injunctions or preservation orders under CPC Order XXXIX. These are expedited processes focused on maintaining the status quo, not conducting evidentiary probes. Appointing a commissioner for local investigation—typically under Order XXVI Rule 9 CPC—would introduce delays and blur the line between interim relief and full trial functions. While no absolute bar exists, courts exercise caution to avoid encroaching on the arbitral tribunal's domain or prolonging proceedings. In practice, such appointments are rare and may be declined if they resemble evidence collection rather than urgent preservation. 2012 0 Supreme(AP) 1257

Commissioners in Property Suits: Permissible and Often Necessary

Unlike Section 9 arbitration, in Public Property Investigation (PPI) suits—commonly involving declaration, injunction, possession, or boundary disputes—appointment of a commissioner is generally permissible and frequently required to elucidate physical features, demarcate boundaries, or localize property. This aids adjudication without infringing judicial processes. 2012 0 Supreme(AP) 1257

Key Legal Provisions

• Order XXVI Rule 9 CPC: Courts may appoint commissioners for local investigations where the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. This includes ascertaining physical features or boundaries. As stated: 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... 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. 2012 0 Supreme(AP) 1257

This provision underscores that such appointments assist in clarifying ground realities, saving time on oral evidence for matters like measurements that are hard to prove otherwise. 2022 0 Supreme(AP) 466 2017 0 Supreme(AP) 513

Purpose and Scope

The core aim is objective on-site assessment:- Note physical features- Demarcate boundaries- Localize disputed property

Courts emphasize this is elucidation, not evidence collection or 'fishing'. The purpose of local investigation is to elucidate any matter in dispute itself, which indicates permissibility of collection of evidence, but mainly from the unique feature of such collection saves much oral evidence and valuable time. 2012 0 Supreme(AP) 1257 2022 0 Supreme(AP) 466

Judicial Precedents Affirming Appointments in Property Disputes

Indian courts have consistently upheld this in property-related suits:

• Donadulu Uma Devi v. Girika Katamaiah @ Basaiah (supra): Supreme Court permitted commissioners for property localization with surveyors, stressing it's for elucidation, not evidence. ...appointment of a commissioner to visit such property and get it surveyed and also note its physical features is qualified. 2012 0 Supreme(AP) 1257

• Shameem Begum v. Vennapusa Chenna Reddy (supra): Local investigations for demarcation do not equate to fishing for evidence. 2012 0 Supreme(AP) 1257

• Haryana Waqf Board v. Shanti Sarup (supra): Allowed even in injunction suits over boundaries. 2012 0 Supreme(AP) 1257

• Bandi Samuel (supra): Permissible for noting features, measuring land; distinguishes elucidation from prohibited fishing (e.g., hearsay inquiries). 2017 0 Supreme(AP) 513

Additional rulings reinforce:- In suits for perpetual injunction, commissioners can note physical features if evidence needs clarification, but not routinely. 2015 0 Supreme(AP) 414- No bar on reissuing commissions, but delays in objections (e.g., 7 years) lead to dismissal. 2016 0 Supreme(Mad) 1399

Limitations and Exceptions: When Appointments Are Denied

Appointments are not blanket rights:- Not for evidence gathering: If facts can be proved via documents/oral evidence, or if it amounts to 'fishing' (hearsay/local enquiries). 2017 0 Supreme(AP) 513- Avoid pre-trial relief: In perpetual injunction/demarcation suits, cannot appoint if it effectively grants decree (e.g., fixing boundary stones prematurely). Appointing Advocate Commissioner... for the purpose of demarcating schedule property and fix boundary stones... amounts to granting pre-trial decree.

Sarala Jain VS Sangu Gangadhar

In injunction suits alone, some courts hesitate unless possession/physical aspects require on-ground verification. 2015 0 Supreme(AP) 414

Contrasting with Other Contexts

In financial disputes involving Pre-paid Payment Instruments (PPI), courts focus on injunctions and confidentiality clubs rather than commissioners. For instance, in acquisition disputes over PPI licenses, ad-interim injunctions were denied favoring damages, emphasizing balance of convenience. 2022 0 Supreme(Mad) 451 2022 Supreme(Online)(Mad) 64162

In insolvency, PPI pool accounts hold customer funds per RBI guidelines, excluded from debtor assets—no commissioner context. 2024 Supreme(Online)(NCLT) 5523

Recommendations for Litigants and Courts

• Evaluate necessity: Base on dispute nature—yes for physical/boundary issues in property suits.
• Define scope clearly: Limit to elucidation/localization.
• Allow participation: Parties should join inspections, object timely.
• Judicial oversight: Distinguish from evidence collection per Order XXVI Rule 9. 2011 0 Supreme(P&H) 1529 2014 0 Supreme(AP) 1317

Conclusion and Key Takeaways

While commissioners cannot typically be appointed in Section 9 Arbitration proceedings due to their interim nature, they are a vital tool in civil property suits for fair adjudication. Supported by Order XXVI Rule 9 CPC and precedents like Donadulu Uma Devi, they elucidate without usurping judicial roles—provided limitations are respected. Always tailor to case facts; improper use invites challenges. For arbitration, stick to standard interim remedies. Stay informed on evolving jurisprudence. 2012 0 Supreme(Raj) 295

References include key judgments like 2012 0 Supreme(AP) 1257, 2011 0 Supreme(P&H) 1529, 2014 0 Supreme(AP) 1317, 2012 0 Supreme(Raj) 295, and others cited.