Whether a Commission Report Under Order 39 Rule 7 CPC Constitutes Evidence in a Civil Suit

A recurring question in civil trials involving interim injunctions is whether a report obtained through a Commission issued under Order 39 Rule 7 of the Code of Civil Procedure, 1908 can be treated as evidence in the suit. Litigants often assume that once a Commissioner inspects the suit property and submits a report, the contents of that report automatically become proof of the facts recorded. The prevailing judicial position, however, is more nuanced, and understanding the distinction between an inspection report under Order 39 Rule 7 and an evidence-gathering report under Order 26 Rule 10 CPC can materially affect how a case is argued and decided.

The Main Legal Finding

A report obtained under a Commission issued under Order 39 Rule 7 CPC is not automatically treated as evidence in the suit. It is primarily an inspection report prepared for the Court's assistance in adjudication. While it may have evidentiary value in certain circumstances, it is not equivalent to evidence under Order 26 Rule 10 CPC

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

Order 39 Rule 7 CPC empowers the Court to order the detention, preservation, or inspection of property which is the subject matter of the suit. The purpose is narrow and functional: the Court may need an independent account of the condition or state of the property while deciding, for example, an application for temporary injunction. A Pleader Commissioner's report submitted under this provision is often utilized by the Court in reaching a decision, but the provision does not convert the Commissioner into a witness whose findings bind the parties

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

Key Points at a Glance

• Order 39 Rule 7 CPC empowers detention, preservation, or inspection of suit property, and the Commissioner's report is used by the Court in reaching a decision

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

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• Such a report may be said to have evidentiary value, but it is not treated as evidence in the same manner as a report from a Survey Knowing Commissioner under Order 26 Rule 10 CPC

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

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• The inspection is for a limited purpose, and the Court may rely on the report while considering an application for injunction

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

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• Parties remain entitled to challenge the correctness of the report, and the Court retains discretion to accept or reject it 1952 0 Supreme(Mad) 369.

How Order 39 Rule 7 Differs From Order 26 Rule 9 and 10

The distinction between these provisions is central to the evidentiary question. Order 26 Rule 9 CPC relates to local investigation for elucidating matters in dispute, whereas Order 39 Rule 7 relates to inspection of property for detention or preservation. The report under Order 39 Rule 7 is not meant to collect evidence but to assist the Court in appreciating and adjudicating the matter before it 2024 0 Supreme(J&K) 53.

Courts have repeatedly cautioned that commissions for local investigation cannot be used as a device to collect evidence that parties are capable of producing themselves. An order appointing a Commissioner must justify why the relevant facts could not be proven through ordinary means such as documents or witnesses; a commission issued as a fishing expedition for evidence is legally unsustainable 2025 0 Supreme(Gau) 2351. Similarly, the appointment of a local commissioner to inspect property and collect evidence on behalf of a party has been held to exceed the scope of Order 26 Rule 9, since such appointments are generally limited to disputes like demarcation of property 2021 0 Supreme(MP) 182.

The Contrarian View on Evidentiary Status

Not all courts have adopted the same characterization. In one line of authority, it has been observed that an inspection report made under Order 39 Rule 7 CPC would tantamount to an evidence, because the report is taken on record, marked as an exhibit, relied upon by the parties, and made subject to cross-examination. The same reasoning supports the proposition that a Commissioner cannot be appointed merely to gather evidence for the benefit of one party to the suit 2014 0 Supreme(Raj) 270.

This apparent divergence is best understood functionally. The report can acquire the character of evidence once it is placed on record and tested through objection or cross-examination, but until it is so proved and acted upon, it remains an aid to the Court rather than substantive proof of the facts stated.

Reliance, Objections, and Cross-Examination

Even where a commission report is admissible, admissibility is different from reliability. Courts must be satisfied that the material is admissible in law before appreciating it, and a party who files objections to a commission report cannot have those objections ignored merely because the report was admitted on record 2011 0 Supreme(Ker) 1007.

Practical consequences follow from this framework:

1. A report under Order 39 Rule 7 cannot substitute for evidence collected through proper processes under Order 26 Rule 9 or 10 CPC.
2. The report does not ipso facto prove the facts stated in it; the Court may accept or reject it 1952 0 Supreme(Mad) 369.
3. If the inspection report travels beyond the scope of the Commission, for instance by expressing opinions on matters outside its authority such as the age of constructions, those opinions cannot be relied upon as evidence 1975 0 Supreme(All) 60
4. 1975 0 Supreme(All) 60(https://supremetoday.ai/doc/judgement/02500037933).
5. A party challenging a report may seek the Commissioner's examination as a witness; applications to summon the Commissioner for recording his statement have been held maintainable 2014 0 Supreme(All) 3813.
6. Findings on pure questions of fact should not rest solely on unproved Commissioner reports; executing courts have been corrected for accepting such reports without proof by evidence 2006 0 Supreme(Raj) 2622.

Procedural flexibility also works in favor of the Court's ability to obtain assistance. The power to appoint a Commissioner for inspection or local investigation may be exercised at any stage of the proceedings, since procedural rules are meant to facilitate justice rather than bar necessary inquiries, even after an injunction application has been decided 2023 0 Supreme(Raj) 1482.

Practical Guidance for Litigants and Counsel

• Counsel relying on an Order 39 Rule 7 report should confine it to its proper purpose, assisting the Court on the inspection of property, and should not treat it as substantive evidence.
• Where the opposing party objects, the Court should examine the report critically and permit cross-examination of the Commissioner where necessary.
• A party seeking to have the report acted upon should be prepared to demonstrate its relevance to the limited purpose of inspection and its reliability.
• Trial courts should record reasons for appointing a Commissioner and ensure the commission does not become a substitute for evidence the parties can produce themselves 2025 0 Supreme(Gau) 2351.

Key Takeaways

The settled position is that a Commission report under Order 39 Rule 7 CPC is an inspection report with limited, purposive use. It typically assists the Court in deciding matters such as injunction applications, may acquire evidentiary character once proved and tested, but does not automatically stand on par with a report under Order 26 Rule 10 CPC. Because the Court's treatment of such reports can vary with the facts, parties should generally consult a qualified advocate on how best to rely on or challenge a Commissioner's report in their specific case.