Order 26 Rule 9 at Final Argument Stage: When Is It Permissible?

In civil litigation under the Code of Civil Procedure (CPC), 1908, timing is everything. A frequent query arises: Application of Order 26 Rule 9 at the Stage of Final Argument. This provision allows courts to appoint commissioners for local investigations, such as property inspections or boundary demarcations, to clarify disputed facts. However, invoking it during final arguments often sparks controversy. Generally, courts view this as impermissible, as it risks turning final submissions into extended evidence-gathering exercises. This post delves into the legal nuances, key judgments, exceptions, and practical advice.

This article provides general insights based on judicial precedents and is not legal advice. Consult a qualified lawyer for case-specific guidance.

Understanding Order 26 Rule 9 CPC

Order 26 Rule 9 empowers courts to issue commissions for elucidating matters in dispute, like site inspections in property suits. It's a tool for fact-finding during the pendency of the suit, typically pre-trial or during evidence stages, not as a last-minute resort. Ramakanta Patnaik VS Suresh Chandra Sahoo - 2016 0 Supreme(Ori) 435

The provision states: courts may appoint a commissioner where it is necessary... to elucidate any matter in dispute. But courts stress its use must align with procedural timelines to prevent abuse. Filing at final arguments is seen as an attempt to fill lacunae or collect evidence, which undermines trial finality. Kuldeep Kumar VS Rikhi Ram - 2011 0 Supreme(HP) 2030

Purpose and Appropriate Timing

The core intent is to aid adjudication by gathering objective data early. For instance:- Demarcation of boundaries in land disputes.- Inspection of properties to resolve factual ambiguities.- Clarifying site conditions before witness testimonies conclude.

Judgments repeatedly affirm: applications should precede final hearings. In Ramakanta Patnaik VS Suresh Chandra Sahoo - 2016 0 Supreme(Ori) 435, the court rejected a late demarcation request, holding such applications are not meant to fill lacunae or to collect evidence at a late stage, especially during the appeal or final argument phase. Sending a commission then would amount to collection of evidence, which is not permissible.

Similarly, Hari Om VS Minish Kumar - 2005 0 Supreme(P&H) 54 declined a local commissioner at the final stage, noting sufficient evidence was already on record.

Judicial Stance: Generally Not Permissible at Final Arguments

Courts across jurisdictions have consistently barred Order 26 Rule 9 applications during final arguments. Here's why:

• Finality of Proceedings: At this stage, evidence is closed; arguments focus on submissions, not new probes. Introducing commissions reopens the case, violating Order 41 Rule 27 principles on additional evidence. Pritam Singh VS Sunder Lal - 1990 0 Supreme(P&H) 265

• No Fishing Expeditions: Late filings often appear as tactics to bolster weak cases. In Utkal Auto Represented Through Its Partner, Akhil Poddar VS Radheshyam Goenka - 2018 0 Supreme(Ori) 868, the court ruled: sending a Commission at this stage would amount to collection of evidence... not to serve as a fishing expedition during the final phases.

• Precedents in Appeals: Even in appellate stages, timing matters. Drawing from Supreme Court in Union of India vs. Ibrahim Uddin (2012) 8 SCC 148, applications under Order 26 Rule 9 read with Order 41 Rule 27 must be heard at final disposal of the appeal, not prematurely. Ajay Dobhal VS Jayanand Suyal - 2019 Supreme(UK) 213 set aside an early rejection, directing consideration at the stage of final hearing. Ajay Dobhal VS Jayanand Suyal - 2019 Supreme(UK) 166 echoed this.

In MOTI MAHTO ALIAS JAIDEO MAHTO vs ASHIM KR DEY - 2024 Supreme(Online)(HC) 5077, after arguments began for the plaintiff, a petition under Order 26 Rules 9 and 10 was filed based on defendant evidence. The court noted it was at the very belated stage.

Exceptions and Narrow Circumstances

While the rule is strict, exceptions exist under extraordinary conditions:- Miscarriage of Justice: Compelling evidence of error preventing fair adjudication.- Irreparable Injury: Rare cases where denial causes grave harm.

These are narrowly construed. For example, Gyanchand Ramrakhyani VS Navdeep Khera - 2018 Supreme(MP) 300 clarified: parties must prove cases via evidence first; commissions clarify post-evidence issues, but at the appropriate stage. An earlier dismissed application doesn't bar a timely second one via res judicata if not decided on merits.

In injunction suits, misapplication occurs. Rachna Gupta VS Parmodh Baru, S/o Sh. Om Parkash Baru - 2024 Supreme(J&K) 53 set aside an order invoking Order 39 Rule 7 instead of Order 26 Rule 9, deeming the commission report non-existent due to procedural error. It emphasized correct CPC application for interlocutory relief.

Appellate courts may direct trial courts to keep applications open for consideration if unresolved disputes persist. ANANDA KUMAR AGARWAL vs RAJABALA AGARWAL

Another case, Lila Devi VS Jagdish Chand, allowed a final-hearing application where a prior commission report existed, treating objections as evidence challenges. But this underscores reports are pieces of evidence evaluated at final stages, not new appointments.

GIAN SINGH AND ANR. vs VIJENDER SINGH ALIAS BIJJU AND ANR. - 2023 Supreme(Online)(P&H) 7689 rejected a rebuttal-stage filing, reinforcing timing scrutiny.

Revisions and Interlocutory Orders

Rejections of late applications are typically not revisable under Section 115 CPC unless affecting substantive rights or causing justice failure. Nirmal Prasad Yadav VS Kapurchand - 1997 0 Supreme(MP) 373

In amendments contexts, like Order 6 Rule 17, late pleas mirroring Order 26 issues are denied if due diligence lacked. SONIA MEHRA VS MANISHA RAWAT - 2015 Supreme(Del) 2332 dismissed an amendment at final arguments, as evidence concluded.

Practical Recommendations for Litigants

To avoid pitfalls:- File Early: Ideally during framing of issues or evidence stage.- Document Need: Show how commission elucidates key disputes without new evidence.- Anticipate Objections: Prepare for claims of delay or fishing.- Appellate Strategy: If rejected timely, argue under Order 41 Rule 27 at final appeal hearing.

Courts should scrutinize motives, ensuring provisions aid justice without prolonging suits.

Key Takeaways

| Aspect | General Rule | Exceptions ||--------|--------------|------------|| Timing | Pre-trial/evidence stage | Extraordinary justice needs || Purpose | Elucidate disputes | Not evidence collection || Consequence of Late Filing | Rejection as impermissible | Rarely allowed || Appellate | Final hearing consideration | Direct bearing on issues |

In summary, application of Order 26 Rule 9 at the stage of final argument is generally not permissible. It contravenes procedural intent, as affirmed in precedents like Kuldeep Kumar VS Rikhi Ram - 2011 0 Supreme(HP) 2030, Hari Om VS Minish Kumar - 2005 0 Supreme(P&H) 54, and others. Timely use ensures efficient adjudication; late attempts invite dismissal.

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References (select excerpts):1. Ramakanta Patnaik VS Suresh Chandra Sahoo - 2016 0 Supreme(Ori) 435: Rejects late applications as evidence collection.2. Kuldeep Kumar VS Rikhi Ram - 2011 0 Supreme(HP) 2030: Not at final stage; re-opens case.3. Hari Om VS Minish Kumar - 2005 0 Supreme(P&H) 54: Sufficient evidence on record.4. Ajay Dobhal VS Jayanand Suyal - 2019 Supreme(UK) 213: Hear at final appeal disposal per Ibrahim Uddin.