Possibility of Appointing a Local Commissioner Under Order 26 Rule 9 During the Appellate Stage

In the complex journey of civil litigation, the trial stage is typically where the bulk of evidence is gathered and facts are established. However, as cases move into the appellate stage, parties often realize that certain physical facts—such as the exact boundaries of a property or the current state of a construction project—require a professional inspection to ensure a just decision. This leads to a critical procedural question: Can Order 26 Rule 9 be filed in the appeal stage?

While the primary purpose of appointing a Local Commissioner is to assist the trial court in clarifying ambiguous facts, the law does not strictly confine this power to the first instance. Understanding how appellate courts view these applications is essential for litigants seeking to introduce critical factual evidence late in the proceedings.

Understanding Order 26 Rule 9 of the CPC

Order 26 Rule 9 of the Code of Civil Procedure (CPC) empowers the court to appoint a commissioner for local investigations. This is generally used when the court deems it necessary to elucidate some matter in dispute, such as the identification of a property, the extent of encroachment, or the nature of a physical structure.

The primary objective is to provide the court with an objective, third-party report on the physical status of a site, which serves as evidence to support the legal arguments presented by the parties. While this is a staple of trial court proceedings, the power to seek such an investigation extends beyond the initial trial.

Can a Local Commissioner be Appointed During Appeal?

The short answer is yes. The general consensus across judicial precedents indicates that the power to appoint a Local Commissioner under Order 26 Rule 9 can be exercised by trial Court and also by any court of appeal 2015 0 Supreme(P&H) 1188.

Several legal findings affirm that an application for the appointment of a Commissioner under Order 26 Rule 9 can be filed during appeal proceedings 2016 0 Supreme(HP) 1271 and 2020 0 Supreme(Mad) 2110 and 2011 0 Supreme(Raj) 1359. This means that if a party believes that a local investigation is necessary for the fair adjudication of the appeal, they may move an application before the appellate court.

The Role of Judicial Discretion and Justification

Although the law permits these applications at the appellate stage, the appointment is not a matter of right. Instead, the exercise of this power is strictly at the discretion of the court 2016 0 Supreme(HP) 1271 and 2011 0 Supreme(Raj) 1359.

Courts are generally cautious about allowing local investigations during an appeal, particularly if the application is filed late. The judiciary typically evaluates such requests based on the following criteria:

• Purpose of the Application: Applications should be aimed at collecting evidence or clarifying facts and must not be used as a tactic for delaying proceedings 2011 0 Supreme(Raj) 1359.
• Clarity of Existing Evidence: If the evidence already on record is sufficiently clear, courts are likely to decline the request. Specifically, applications for spot inspections filed at the argument stage are generally declined if the evidence is clear 1993 0 Supreme(MP) 686.
• Justification for Delay: If a party seeks a commission at a late stage, they must provide valid reasons why such an investigation was not sought during the trial or the first appeal.

Interaction with Order 41 Rule 27 (Additional Evidence)

When a party seeks the appointment of a commissioner at the appellate stage, the request is often viewed as an application for additional evidence. Consequently, Order 26 Rule 9 is frequently read in conjunction with Order 41 Rule 27 of the CPC.

According to established jurisprudence, the procedure for handling such requests is specific:1. Timing of the Hearing: The court has emphasized that the application for taking additional evidence on record at an appellate stage is to be heard at the time of final hearing of the appeal 2019 0 Supreme(UK) 213.2. Relevance to Main Issues: For the application to be granted, the proposed additional evidence must have a direct and important bearing on a main issue in the case 2019 0 Supreme(UK) 213.3. Fair Adjudication: Courts acknowledge that parties can seek production of documents during the appellate stage for fair adjudication 2025 Supreme(Online)(Ker) 39921, and the same logic applies to the appointment of expert commissioners to establish disputed facts.

Case Illustrations and Practical Applications

The application of Order 26 Rule 9 at the appeal stage varies depending on the factual necessity of the case:

• Property Demarcation: In cases involving disputes over encroachment, courts have held that a Lower Appellate Court should allow applications to get demarcation done to resolve the dispute accurately 2015 0 Supreme(P&H) 1188.
• Survey Commissions in Second Appeals: Even in a second appeal under Section 100 of the CPC, the necessity of appointing a survey-knowing commissioner can be raised as a question of law 2018 0 Supreme(Ori) 228. In one instance, a summary rejection of such an application by the appellate court was set aside, and the matter was remitted back to the lower appellate court to obtain a survey report 2018 0 Supreme(Ori) 228.
• Expert Valuation: In disputes involving construction costs without a written contract, courts have allowed the appointment of an expert commissioner for valuation during the appeal process to ensure that procedural missteps should not impede justice 2025 Supreme(Online)(Ker) 39921.

Key Takeaways and Conclusion

Filing an application under Order 26 Rule 9 during the appeal stage is legally permissible, but it is a discretionary remedy rather than an absolute right. To successfully secure the appointment of a Local Commissioner during an appeal, a litigant must typically demonstrate that the investigation is essential for the core issues of the case and that the existing record is insufficient.

Generally, these applications are heard alongside the final arguments of the appeal and are evaluated based on their relevance and the lack of intent to delay the proceedings. While findings of fact based on existing evidence are rarely disturbed in second appeals 2010 0 Supreme(MP) 199, procedural applications for commissioners may still be entertained if they are critical to the interest of justice. This information is provided for general understanding and may vary based on the specific facts of a case and the governing jurisdiction.