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Analysing the retrieved Case Laws
Scanned Judgements…!
The court has the discretion to appoint a commissioner based on the facts, necessity, and purpose of the suit, with the aim to facilitate justice rather than to enable evidence collection ["Ram Sanjiwan Choudhary VS Arun Kumar Rai - Patna"], ["Moti Mahto @ Jaideo Mahto VS Ashim Kr. Dey S/o Late Sripati Dey - Jharkhand"], ["Mende Shekar vs Manchikanti Balaji - Telangana"].
Analysis and Conclusion:
In civil litigation, courts often rely on expert assistance to clarify factual disputes, especially those involving physical verification like property boundaries or encroachments. One such tool is the Pleader Commissioner, appointed under provisions like Order 26 Rule 9 of the Code of Civil Procedure (CPC), 1908. But what are the governing principles for appointment of pleader commissioner? This blog post breaks down the legal framework, drawing from key judicial precedents to help litigants and lawyers understand when and how these appointments are made.
Understanding these principles is crucial, as improper appointments can lead to procedural errors, delays, or even orders being set aside. We'll explore the purpose, conditions, limitations, and best practices, ensuring you grasp the judicious exercise of judicial discretion.
A Pleader Commissioner, often a survey-knowing advocate, is appointed by the court to assist in local investigations. This includes tasks like surveying land, inspecting properties, or identifying boundaries in disputes such as encroachment suits. The role is not to gather evidence for one party but to aid the court in factual verification. As held, The appointment of a Pleader Commissioner must be for a specific, limited purpose, such as survey, inspection, or identification of property Satyadeo Tiwary VS Parash Nath Singh - Current Civil Cases (2022)Ramakrushna Nayak VS Manoj Kumar Behera - Current Civil Cases (2025)Bandaru Mutyalu VS Palli Appalaraju - 2013 0 Supreme(AP) 484.
The court's discretion is pivotal: The discretion to issue a Commission for local investigation lies with the trial Court, and the report of the Commissioner is not binding on the trial Court Asraf Ansari S/o Late Kamrujama Ansari VS Jitendra Prasad S/o Ram Charan Sah.
Appointments must be tailored to precise needs. Courts emphasize factual or physical assistance, not broad evidence collection. For instance, in encroachment removal suits, a Survey-Knowing Pleader Commissioner conducts scientific surveys to ascertain boundaries Satyadeo Tiwary VS Parash Nath Singh - Current Civil Cases (2022). Similarly, In a suit for removal of encroachment, appointment of survey-knowing pleader commissioner is legally valid... scientific measurement of disputed land is required Satyadeo Tiwary VS Parash Nath Singh - 2022 Supreme(Pat) 682.
The scope is narrow: The appointment should not be used as a tool for gathering evidence or fishing out evidence, which is impermissible INSTITUTION OF ENGINEERS (INDIA) VS BISHNU PADA BAG - 1977 0 Supreme(Cal) 402Samir Mitra VS Tapati Banerjee - 2012 0 Supreme(Cal) 596. In one case, a petition for inspection was rejected post-witness examination, as it aimed to contradict statements rather than verify facts Asraf Ansari S/o Late Kamrujama Ansari VS Jitendra Prasad S/o Ram Charan Sah.
Courts exercise discretion based on case circumstances—it's not an automatic right. The court’s discretion to appoint a Pleader Commissioner depends on the circumstances and the nature of the dispute Prem Bai VS Shyama Devi - Current Civil Cases (2019)Ramakrushna Nayak VS Manoj Kumar Behera - Current Civil Cases (2025).
Necessity must be shown. Where no dispute exists over property identity or location, appointments lack grounds: The application for appointing a survey commissioner lacked sufficient grounds... no dispute regarding the identity or location of the property Krishna Mistry @ Krishna Vishwakarma, Son of Nankeshwar Mistray VS Baidyanath Prasad Yadav, Son of late Bhim Mahato - 2024 Supreme(Jhk) 801. Conversely, when boundaries are disputed, appointment of Advocate Commissioner will be more helpful for the court to decide the lis Sri Vala Srinivas Rao vs Nuzhat Zamani (Died) per LRs - 2026 Supreme(Online)(Tel) 3947.
Orders must follow CPC rules. For second commissioners or superseding reports, reasons must be explicitly recorded in writing Maya Ram VS Asha Ram - Current Civil Cases (2025). Failing this is strongly condemned and contrary to procedural rules.
Communication is key: An order for appointment must be communicated to the person concerned; provisional or non-communicated orders are ineffective T. C. Mathai VS District And Sessions Judge, Thiruvananthapuram, Kerala - 1999 3 Supreme 308. Ex parte or informal orders are invalid Mundrika Prasad Singh VS State Of Bihar - 1979 0 Supreme(SC) 408.
Not every request qualifies. Key restrictions include:- No Fishing Expeditions: Appointments cannot collect evidence or probe unrelated matters, like proxy votes or documents INSTITUTION OF ENGINEERS (INDIA) VS BISHNU PADA BAG - 1977 0 Supreme(Cal) 402. The appointment of a Pleader Commissioner for fishing out evidence is impermissible INSTITUTION OF ENGINEERS (INDIA) VS BISHNU PADA BAG - 1977 0 Supreme(Cal) 402.- Within Suit's Scope: Limited to suit subject matter. In execution proceedings, exceeding this leads to failure of justice: The appointment of a Pleader Commissioner was beyond the jurisdiction of the court Girija Devi VS Lallan Singh - 2012 Supreme(Pat) 61.- Not for Party Benefit: The result of the report of the Pleader Commissioner will not amount to creating evidence in favour of one party Pramod Vyas VS Ramadhar Dubey - 2013 Supreme(Pat) 914. It's for ascertaining physical position, like existence of structures Tribhuban Kumar Rai @ Tribhuban Rai VS Ram Dhyan Rai - 2013 Supreme(Pat) 882.
Trial courts decide post-issue framing or evidence sufficiency, not prematurely Bal Manohar Jalan S/o Late Hira Lal Jalan VS Braj Nandan Sahay S/o Sri Lalji Sahay - 2012 Supreme(Pat) 530.
Dissatisfaction with a first report doesn't justify casual re-appointments. Courts must:- Explicitly supersede the prior report.- Record reasons in writing Maya Ram VS Asha Ram - Current Civil Cases (2025).
The practice of appointing a second commissioner without recording reasons or without superseding the first report is strongly condemned Maya Ram VS Asha Ram - Current Civil Cases (2025).
Higher courts intervene sparingly under Article 227, only for perversity or injustice Noratmal Bengani VS Dhruba Kumar Jalan - 2011 0 Supreme(Cal) 30. Discretion must align with natural justice, ensuring fairness.
From precedents:- Uphold if for physical verification: Appointment of Survey-Knowing Pleader Commissioner... to conduct a survey in order to ascertain correct extent and boundaries Satyadeo Tiwary VS Parash Nath Singh - 2022 Supreme(Pat) 682.- Reject if vague: No purpose specified in application Krishna Mistry @ Krishna Vishwakarma, Son of Nankeshwar Mistray VS Baidyanath Prasad Yadav, Son of late Bhim Mahato - 2024 Supreme(Jhk) 801.
To ensure validity:- Specify Purpose Clearly: Limit to survey/inspection.- Record Reasons: Especially for multiples.- Communicate Properly: Formal orders only.- Avoid Evidence Fishing: Stick to factual aid.
Litigants should demonstrate necessity via pleadings, avoiding post-evidence fishing Asraf Ansari S/o Late Kamrujama Ansari VS Jitendra Prasad S/o Ram Charan Sah.
Disclaimer: This post provides general insights based on precedents and is not legal advice. Consult a qualified lawyer for case-specific guidance, as outcomes vary by facts and jurisdiction.
In summary, principles for appointment of pleader commissioner prioritize purpose-specific, procedurally sound assistance. Proper use enhances justice; misuse invites reversal Maya Ram VS Asha Ram - Current Civil Cases (2025). Stay informed to navigate civil suits effectively.
#PleaderCommissioner, #CPCLaw, #CivilLitigation
Learned counsel for the petitioner further submits that Order 26 Rule 9 of the CPC deals with the appointment of the Survey Knowing Pleader Commissioner and in the present case for deciding the dispute, it is necessary that the Court below should be directed for appointment of Survey Knowing Pleader ... The Court below is directed to appoint a Survey Knowing Pleader Commissioner within fifteen days from the date of receipt/production of a copy of this order. 20. The S....
of Pleader Commissioner. ... Learned counsel for the petitioner submits that the petitioner had not filed the application for appointment for Pleader Commissioner keeping in view of the cross-examination of PW-2 rather the same was referred in order to show the necessity for appointment of Pleader Commissioner on the ground mentioned ... Petitioner is one of the substituted legal heirs of original defendant who filed the petition dated 07.08.2014 for....
The appointment of Survey knowing/Pleader Commissioner is essential in deciding the issue sought for in the said plaint. ... The Trial Court is directed to proceed for appointment of Survey knowing/Pleader Commissioner in accordance with law after verifying the fact from the petitioners/plaintiffs as to whether fee to the Pleader Commissioner has been deposited or not. ... So, for proper and complete adjudication of this matter, the appoin....
The learned counsel further submits that if there is no prejudice being caused to either of the parties, challenging the appointment of Pleader Commissioner is not justified. The report of the Pleader Commissioner is only for the purpose of assisting the Court for arriving at a proper decision. ... passed in Civil Writ Jurisdiction Case No.19298 of 2015 on 18 April, 2019 wherein the learned Single Judge held that as the appointment of Survey Knowing Pleader #HL_START....
land, has directed for appointment of Pleader Commissioner. ... The request of the plaintiffs-respondents has been accepted by the learned Trial Court on the ground that in a suit for removal of encroachment, appointment of survey-knowing pleader commissioner is legally valid. 4. ... Issues have already been framed in the suit and after framing of the issues, the plaintiffs-respondents filed a petition, under Order XVI Rule 10 (a) of the Code of Civil Procedure, for appointm....
land, has directed for appointment of Pleader Commissioner. ... The request of the plaintiffs-respondents has been accepted by the learned Trial Court on the ground that in a suit for removal of encroachment, appointment of survey-knowing pleader commissioner is legally valid. 4. ... Issues have already been framed in the suit and after framing of the issues, the plaintiffs-respondents filed a petition, under Order XVI Rule 10 (a) of the Code of Civil Procedure, for appointme....
Learned Assistant Government Pleader for Defendants 1 to 3 (Revenue authorities) has not objected for appointment of Advocate Commissioner. ... From the above judgments, the principles to be culminated are, i) there is no bar in appointing an Advocate Commissioner in a civil suit; ii) when the boundaries and the exact location of the suit schedule land is in dispute, appointment of Advocate Commissioner will be more helpful for the court to ... decide the lis; iii) in....
for appointment of a commissioner. ... of Survey pleader Commissioner in order to measure the plots in dispute, has been rejected. ... Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 38. ... The learned counsel appearing for the petitioners assailing the order impugned, as bad in law, contended that from bare perusal of Order-XXVI Rule-9 of the Code it would appear that Pleader Commissioner ....
appointment as Additional District Government Pleader. ... Hence for the same reason appointment of Additional District Govt. Pleader is indispensable. ... With this establishment arose, the concomitant need for appointing an Additional District Government Pleader (hereinafter referred to as the ‘Government Pleader’ for short). Pending such appointment, the Government placed the already serving Government Pleader on additional Charge on 19-09-2024. .....
8.5 The finding recorded by the learned trial court is perverse, reason being in the application itself for appointment of pleader commissioner no where the applicant has mentioned for what purpose he wants to call for the report of survey commissioner. ... 8.2 Taking into consideration the pleadings of the plaintiff there is no requirement of appointing any survey pleader commissioner. ... The plaintiff in the application which is annexure no.3 has not shown any ground on which he w....
The trial court would decide the matter of appointment of Pleader Commissioner. If the trial court came to the conclusion that the lands purported to be sold was acquired by the State much prior to the date of agreement, the learned Single Judge directed the BSFC not to treat the appellant as defaulter and the period of default from the date it commenced until the end of September, 2005 shall be ignored by them and the appellant shall start making payment of installments from the month of October, 2005 in terms of the agreement and shall also pay up-to-date interest, includ....
Secondly, I am not in agreement with the submission that the impugned order for appointment of Pleader Commissioner has been passed in order to collect evidence in favour of the plaintiff. The petition for appointment of Pleader Commissioner under Order 26 Rule 9 of the Code was filed not for the purpose of ascertaining the possession of one or the other party over the suit property rather it was confined to ascertain the correct position of the suit property, particularly, with regard to existence of a thatched house and trees surrounded by a barrier. The result of the rep....
6. From the impugned order, it will appear that the court below directed for appointment of Pleader Commissioner not for ascertaining the actual possession of the suit property rather to ascertain the actual physical “position” of the suit land. It cannot be said that the purpose of appointment of Pleader Commissioner, in the facts and circumstances of the case, is for collecting evidence for the benefit of a party.
There may be departures form the normal rule for issue a commission also. The appointment of Pleader Commissioner will help the court to come to a correct and actual position of disputed property. Learned counsel for the petitioners submits that the court below has rightly refused to decide the issue of appointment of Pleader Commissioner as at the relevant point of time the parties had still to examine the witnesses. He further submits that the purpose is to obtain evidence due to its peculiar nature dispute of encroachment and such evidence would enable the Court to prope....
Thereafter the application has been filed by the defendant. In this execution case the present defendant respondents filed an application for appointment of Pleader Commissioner which has been allowed. To execute the final decree the plaintiff petitioner filed Execution Case No. 1 of 2004. According to the learned counsel for the petitioner in the execution case earlier Pleader Commissioner was appointed and delivery of possession according to the final decree was affected and possession of the property to the extent of the share of the petitioner was delivered to the petit....
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