Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
The law emphasizes that such appointments should be made at appropriate stages of the suit, before evidence is closed, to avoid roving or fishing inquiries, and courts are cautious in granting such requests at the fag end of proceedings ["Moti Mahto @ Jaideo Mahto VS Ashim Kr. Dey S/o Late Sripati Dey - 2024 0 Supreme(Jhk) 71"], ["Chandan Khandewal vs G. Ramakrishna Reddy - Telangana"], ["- Himachal Pradesh"].
Analysis and Conclusion:
References:- ["Moti Mahto @ Jaideo Mahto VS Ashim Kr. Dey S/o Late Sripati Dey - 2024 0 Supreme(Jhk) 71"]- ["Chandan Khandewal vs G. Ramakrishna Reddy - Telangana"]- ["- Himachal Pradesh"]- ["THE TAMILNADU SMALL AND TINY INDUSTRIES ASSOCIATION vs S.ANBURAJAN - Madras"]- ["DESINENI SRINU BABU vs KUNDETI LAKSHMI - Andhra Pradesh"]- ["Bhanwar Singh, S/o. Bachha Ji vs Pyari Ben, W/o. Darajmal - Rajasthan"]- ["SRI KUMAR vs SRI.PRAKASH BABU - Karnataka"]- ["Battu Saidi Reddy vs Battu Madhav Reddy - Telangana"]
In civil litigation in India, parties often seek court-appointed Advocate Commissioners to inspect sites or gather specific evidence. But what happens when a request comes after evidence has closed? Can the court appoint a commissioner under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) to collect evidence or plug evidentiary gaps? This is a common pitfall that can lead to rejected applications and wasted efforts.
This post breaks down the legal position, drawing from established precedents and judicial insights. We'll explore the rule's purpose, timing constraints, exceptions, and strategic recommendations. Note: This is general information based on case law and not specific legal advice. Consult a qualified lawyer for your case.
An Advocate Commissioner cannot be appointed under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) to collect evidence or fill lacunae after a party has already closed their evidence.
This principle upholds the trial's integrity, preventing parties from using commissions as a backdoor to supplement closed evidence. Courts view such late-stage requests as contrary to the rule's intent. M. Siddiq (D) Thr. Lrs. VS Mahant Suresh Das - 2019 8 Supreme 1
The settled position is clear: Appointments under Order XXVI Rule 9 are not meant to assist parties in collecting evidence or filling lacunae after evidence closure. Such moves are deemed unwarranted and an abuse of process. Sanjay Kumar VS Shakti Singh - 2020 0 Supreme(HP) 696
Key reasons include:- The rule aims to elucidate disputed matters or obtain spot-specific material, not general evidence gathering. M. Siddiq (D) Thr. Lrs. VS Mahant Suresh Das - 2019 8 Supreme 1- Post-closure appointments disrupt trial timelines and reward dilatory tactics.- Courts exercise discretion judiciously, prioritizing evidence led during trial.
As one judgment notes: Recourse to the appointment of Local commissioner for demarcating the suit land at this stage is impermissible as both the parties have led their evidence. Sanjay Kumar VS Shakti Singh - 2020 0 Supreme(HP) 696
Order XXVI Rule 9 empowers courts to appoint commissioners for local investigations when necessary to:- Elucidate matters in dispute.- Ascertain market value, damages, or spot-specific facts.
The core object? To obtain material that can only be procured by visiting the spot, not to assist a party in collecting evidence or filling lacunae in the evidence already led. M. Siddiq (D) Thr. Lrs. VS Mahant Suresh Das - 2019 8 Supreme 1
It's not a tool for roving inquiries or evidence collection where parties could have adduced proof earlier. Echoing this, courts have ruled: The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. Bandi Samuel VS Medida Nageswara Rao - 2016 Supreme(AP) 531
From other precedents:- A Local Commissioner under the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure cannot be appointed to allow a party to collect evidence in favour of a party. PYAR SINGH Vs ACHRU RAM- Local commissioners clarify disputed issues but parties must prove their case via evidence. Even post-evidence completion, applications aren't barred outright—but rarely granted if filling gaps. Chandan Khandewal vs G. Ramakrishna Reddy - 2025 Supreme(Online)(Tel) 9894
Precedents unanimously stress timely applications:- Appointments should occur before evidence closure, ideally after pleadings but pre-trial evidence. Ponnusamy Pandaram VS The Salem Vaiyappamalai Jangamar Sangam - 1984 0 Supreme(Mad) 397- Late requests, especially when arguments are pending, are unwarranted: Appointment of a Commissioner at a belated stage after closure of evidence and when the suit is adjourned for arguments is unwarranted. B. Bikshapathi VS P. Radha - 2022 0 Supreme(Telangana) 136
In one case, an appellate court directly appointing a commissioner just before judgment was faulted: Appointment of Commissioner cannot be permitted to collect evidence just before the judgment. Jamir Khan s/o Amir Khan VS Dharamchand s/o Roopchand Sawala - 2017 Supreme(Bom) 752
Another highlights procedural lapses: Trial courts must record satisfaction under local rules (e.g., Rule 230(1)(c) of Gauhati High Court rules) before appointing, ensuring no roving enquiry. Failure leads to quashing. Swastik Assam Real Estate Pvt. Ltd. VS Ratan Raha - 2018 Supreme(Gau) 1427
Courts hold wide discretion, but it's fettered by the rule's purpose:- Not for filling gaps: Such appointment at this stage would not assist in adjudicating the title dispute and would merely serve to fill evidentiary gaps. Moti Mahto @ Jaideo Mahto VS Ashim Kr. Dey S/o Late Sripati Dey - 2024 0 Supreme(Jhk) 71- Spot-specific only: The object of local investigation is not to collect evidence but to obtain such material, which from its peculiar nature can be had only at the spot. MAHENDRANATH VS PURNANANDA - 1987 0 Supreme(Ori) 145
Judicial caution is routine: Under the garb of Order XXVI Rule 9 CPC, assistance of the Court should not be sought to collect any favourable evidence as onus of proof of their case lies... GURNAM SINGH vs MOHINDER SINGH AND OTHERS
Rejections are common when:- Evidence could have been procured earlier. Kanta Bai VS Umashankar - 2019 Supreme(MP) 679- It enables roving enquiries post-closure. Swastik Assam Real Estate Pvt. Ltd. VS Ratan Raha - 2018 Supreme(Gau) 1427
While rare, exceptions exist if the court finds exceptional necessity:- Matters impossible to prove otherwise without spot inspection, even late. Chandan Khandewal vs G. Ramakrishna Reddy - 2025 Supreme(Online)(Tel) 9894- Pre-closure is ideal, but no absolute bar if justice demands (e.g., new facts emerge warranting elucidation). Balwinder Singh VS Dilbag Singh - 2018 Supreme(P&H) 2495
For instance, in encroachment disputes, spot inspection for physical features may be ordered if oral evidence suffices not—regardless of stage, provided no evidence collection intent. Bandi Samuel VS Medida Nageswara Rao - 2016 Supreme(AP) 531
Another upheld appointment for verifying water khal existence to avoid excessive oral evidence. Balwinder Singh VS Dilbag Singh - 2018 Supreme(P&H) 2495
Courts must exercise sound discretion, weighing prejudice and trial stage.
To avoid pitfalls:- File early: Seek commissions post-plaint/written statement, before evidence.- Justify necessity: Show spot-specific facts, not general evidence.- Prepare alternatives: Lead robust evidence during trial to obviate needs.- Appeal wisely: Higher courts scrutinize late appointments rigorously.
Trial courts should:- Record reasons for appointment.- Limit scope to elucidation, not collection.- Discourage abuse to uphold procedure. Committee of Management Anjuman Intezamia Masajid, Varanasi VS Rakhi Singh - 2024 4 Supreme 602
| Case ID | Key Holding ||---------|-------------|| Sanjay Kumar VS Shakti Singh - 2020 0 Supreme(HP) 696 | No post-closure demarcation; evidence already led. || Ponnusamy Pandaram VS The Salem Vaiyappamalai Jangamar Sangam - 1984 0 Supreme(Mad) 397 | Late appointments improper for gaps. || B. Bikshapathi VS P. Radha - 2022 0 Supreme(Telangana) 136 | Belated stage unwarranted. || GURNAM SINGH vs MOHINDER SINGH AND OTHERS | Not for favorable evidence collection. || Bandi Samuel VS Medida Nageswara Rao - 2016 Supreme(AP) 531 | Not to assist procurable evidence. |
In summary, Order XXVI Rule 9 CPC is a powerful tool for spot elucidations but generally unavailable post-evidence closure for filling lacunae or collecting evidence. Courts prioritize trial discipline, rejecting belated pleas unless exceptionally justified—which is uncommon.
Takeaways:- Time your applications pre-closure.- Focus on rule's true purpose: spot-specific insights.- Build strong evidence trails upfront.
This position, reinforced across High Courts and Supreme Court echoes, ensures fair, efficient trials. For tailored guidance, engage legal experts familiar with your jurisdiction's nuances.
References (select excerpts):1. Appointment aids court, not post-closure gaps. Committee of Management Anjuman Intezamia Masajid, Varanasi VS Rakhi Singh - 2024 4 Supreme 6022. Repeatedly held: Consider pre-evidence. Ponnusamy Pandaram VS The Salem Vaiyappamalai Jangamar Sangam - 1984 0 Supreme(Mad) 397
Stay informed—civil procedure evolves, but these principles endure.
#CPCRule9, #AdvocateCommissioner, #CivilProcedure
XXVI Rule 9 and 10 read with section 151 of the Code for appointment of the commissioner on the basis of evidence as led by the defendant. ... (petitioners herein) under Order XXVI Rule 9 and 10 of Code of Civil Procedure (here in after to be referred as C.P.C), for appointment of Survey pleader Commissioner in order to measure the plots in dis....
No.290 of 2024 is filed; under Order XXVI Rule 9 of the C.P.C., the advocate commissioner can be appointed for clarifying any issue in dispute; the parties in the suit must prove their case, by way of evidence. ... Even after the evidence of the parties has been completed, there is no bar for filing application for appointment of an advocate commissioner under Order#HL_....
regard under Order XXVI, Rule 9 of the Code of Civil Procedure so as to collect evidence in favour of a party. ... To bring home his contention that a Local Commissioner under the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure cannot be appointed to allow a party to #HL_ST....
regard under Order XXVI, Rule 9 of the Code of Civil Procedure so as to collect evidence in favour of a party. ... To bring home his contention that a Local Commissioner under the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure cannot be appointed to allow a party to #HL_ST....
XXVI Rule 9 of the Code cannot be directed to gather evidence. ... up the lacunae, if there by any, as the purpose of the provision of Order XXVI Rule 9 and 10-A of the Code is not to find out or create evidence. ... to a Commissioner appointed under rule 9.” ... The Trial Judge ri....
The object of local inspection under Order XXVI Rule 9 of CPC is to collect evidence at the instance of the party who relies upon the same and which evidence cannot be taken in the Court but could be taken only from its peculiar nature on the spot. ... In the subject suit filed by the respondent No.1 and 2 herein, the petitioners have filed the underlying interlocutory application under Order #HL_....
No.290 of 2024 is filed; under Order XXVI Rule 9 of the C.P.C., the advocate commissioner can be appointed for clarifying any issue in dispute; the parties in the suit must prove their case, by way of evidence. ... Even after the evidence of the parties has been completed, there is no bar for filing application for appointment of an advocate commissioner under Order#HL_....
As already noted that there is no gainsaying about settled proposition of law that under the garb of Order XXVI Rule 9 CPC, assistance of the Court should not be sought to collect any favourable evidence as onus of proof of their case lies ... Insipid argument of learned counsel for petitioner that Order XXVI Rule 9 of CPC is not applicable in the e....
Hence, the plaintiff filed I.A.No.VII for appointment of a Court Commissioner under Order XXVI Rule 9 of CPC. 4. ... It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. ... B.K.Bhojraj by order dated 31.08.2010 passed in W.P.No.34679/2009 (GM-CPC) “It is settled position of law that Court- #HL_STAR....
filed under Order XXVI Rule 9 of CPC and not qua application filed under Order XXXIX Rule 7 of CPC. ... Buch that the scope of the provisions under Order XXVI Rule 9 of CPC is entirely different than the provisions contained in Order XXXIX Rule 7 of CPC and the principle that the Court should not appoint a #H....
9. So far as rejection of the application filed under Order XXVI Rule 9 of CPC is concerned, it is well established principle of law that the local commissioner cannot be appointed for the purpose of collecting evidence. The appellate court by order dated 26/10/2016 had rejecting the application on the ground that in the light of the judgment passed by the High Court in the case of Babu Khan Vs. State of M.P. reported in MPWN 1980 (Vol.2) SN 261 it is clear that the commissioner cannot be appointed for collecting the evidence, apart from holding that the appellant could hav....
There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. To answer this question, we have to understand the expression of “elucidating any matter in dispute” in Order 26, Rule 9 of CPC.
Therefore, in view of the discussions above notwithstanding that the petitioners herein had prayed for appointment of commissioner vide petition No. 4460/16, being Misc. It is also seen that while ordering the appointment of Commissioner, the learned trial Court had not recorded its satisfaction as provided under Rule 230(1)(c) of the Civil Court Rules and Orders of Gauhati High Court. Moreover, by the impugned order, a scope has been provided to the respondents for making a roving enquiry which is not the purpose of the provisions of Order XXVI Rule 9 CPC, as such, the impugned order suffer....
The appellate Court directly appointed the Commissioner to inspect site and submit report about exact location of the suit plot. However, perusal of the judgment in this case goes to show that the dispute in the case was not relating to encroachment or joint measurement by the plaintiff and defendant, but it was pertaining to exact location of the plot. In the backdrop of these facts, it was held that under Order XXVI Rule 9 of C.P.C., appointment of Commissioner cannot be permitted to collect evidence just before the judgment. The appellate Court has to decide the matter b....
7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. To answer this question, we have to understand the expression of “elucidating any matter in dispute” in Order 26, Rule 9 of CPC. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit.
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