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Order 26 Rule 9 CPC: Why It Cannot Be Allowed Before Trial
In civil litigation, parties often seek court-appointed advocate commissioners or local commissioners to inspect properties, demarcate boundaries, or clarify disputed facts. However, a common misconception is that Order 26 Rule 9 of the Code of Civil Procedure (CPC) can be freely used at any stage, especially before trial, to gather evidence. Courts have repeatedly clarified that this provision has strict limits. This post explores why Order 26 Rule 9 cannot be allowed before trial for evidence collection, drawing from key judicial precedents.
Disclaimer: This article provides general information based on judicial trends and is not legal advice. Consult a qualified lawyer for case-specific guidance, as outcomes depend on individual facts.
What is Order 26 Rule 9 CPC?
Order 26 Rule 9 CPC empowers courts to issue commissions for local investigations to elucidate any matter in dispute. The rule states:
9. Commissions to make local investigations. — In any suit in which the Court deems a local inspection necessary or convenient for the ends of justice, or for the purpose of obtaining evidence or to make clear any matter in dispute, the Court may issue a commission to a person... Ramjani Khan VS Komal Prasad - 2019 Supreme(MP) 603
Key purposes include:
- Clarifying physical features of disputed property (e.g., boundaries in demarcation suits).
- Assisting the court in understanding site-specific facts.
- Not for collecting evidence to prove a party's case.
The commissioner's report is merely advisory and not binding on the court, which must decide based on oral and documentary evidence. Kambod Singh vs Govt.Of India - 2021 Supreme(Online)(MP) 8148
Core Limitation: No Evidence Collection Before Trial
Courts have consistently held that Order 26 Rule 9 cannot be allowed before trial to fill evidentiary gaps or create evidence. Here's why:
1. Not a Tool for Gathering Evidence
- The provision is for elucidation, not proof. Appointments to collect evidence are impermissible. In one case, the court set aside an order appointing a commissioner to inspect property and collect evidence, stating it exceeded the rule's scope. Sapna VS Indore Municipal Corporation - 2021 Supreme(MP) 182
- The appointment of a Local Commissioner under Order 26 Rule 9 CPC does not permit the collection of evidence, only elucidation. Ram Biloki and another vs Ramswaroop and others - 2018 Supreme(Online)(MP) 1496
2. Timing Restrictions: Avoid Pre-Trial Abuse
- Applications filed late (e.g., after years or at final arguments) are typically dismissed if meant to delay trial. A petitioner seeking a commissioner for market value after three years without explanation failed, as no documentary evidence supported the claim. R.M.SANKAR vs C.JAGANATHAN - 2023 Supreme(Online)(MAD) 43736
- Parties must prove their case through evidence during trial; commissioners aren't substitutes. The trial court may appoint a local Commissioner under Order 26 Rule 9 to clarify ambiguities, but this should be exercised judiciously and not merely to fill evidentiary gaps at the final argument stage. Babulal Singh vs Smt. Rampiyari Singh - 2024 Supreme(Online)(MP) 6177
3. No Multiple Commissions Without Invalidating Prior Reports
- A second commissioner requires setting aside the first report. Without this, applications are rejected to prevent multiplicity. The appointment of a second Advocate Commissioner is only permissible if the first report is invalidated; otherwise, the application must be dismissed. ARJUNAN vs RAMASAMY - 2024 Supreme(Online)(MAD) 19303
Judicial Precedents on Restrictions
Indian courts, including High Courts and the Supreme Court, have shaped these limits through landmark rulings:
Demarcation Disputes Only When Identity in Question: Appointment is justified if land identity or boundaries are unclear, but not for construction disputes. In a suit for injunction against illegal construction, appointing a commissioner to collect evidence was quashed. Sapna VS Indore Municipal Corporation - 2021 Supreme(MP) 182
Prior Investigations Suffice: If revenue authorities or municipalities have already probed (e.g., encroachment notices), no further commissioner is needed. Courts may refuse to order further investigation if substantial evidence already exists regarding encroachment, per Order 26 Rule 9. SUJEET SHRIVASTAVA vs GANGA SAGAR - 2025 Supreme(Online)(MP) 5468
No Delegation of Adjudicatory Power: Courts cannot outsource decision-making. Directing a commissioner to find names of Bhumiswami and possessor was illegal, as these are for the trial court to decide on evidence. Ramjani Khan VS Komal Prasad - 2019 Supreme(MP) 603
Discretionary but Judicial: Trial courts have discretion, but it must be reasoned. Indiscriminate appointments for evidence gathering are set aside under Article 227. In a cart track dispute, reissuing warrants without bona fide reasons was quashed. M. V. Rathinam & Another VS Padmadevi - 2007 Supreme(Mad) 3362
Not for Unpleaded Reliefs: If demarcation isn't claimed in the plaint, the application fails. Application under Order 26, Rule 9 CPC cannot be allowed to permit plaintiffs to claim a relief which he has not even claimed in main suit. Dushyant Singh, wife of Late Lalamindraj Singh VS Shivaji Rao Dhurve, son of Hathulal Dhurve - 2017 Supreme(Chh) 112
Table: Common Scenarios and Court Rulings
| Scenario | Court Ruling | Key Citation |
|----------|--------------|--------------|
| Late application at final arguments | Dismissed; prove case via evidence | Babulal Singh vs Smt. Rampiyari Singh - 2024 Supreme(Online)(MP) 6177 |
| To collect evidence on encroachment | Rejected; prior probes enough | SUJEET SHRIVASTAVA vs GANGA SAGAR - 2025 Supreme(Online)(MP) 5468 |
| Multiple commissioners | Only if first report set aside | ARJUNAN vs RAMASAMY - 2024 Supreme(Online)(MAD) 19303 |
| Boundary fixing without dispute | Beyond scope; set aside | Nandala Anvesh vs Mamidala Vijay - 2025 Supreme(Telangana) 715 |
| For market value without docs | Belated; dismissed | R.M.SANKAR vs C.JAGANATHAN - 2023 Supreme(Online)(MAD) 43736 |
When Can Order 26 Rule 9 Be Invoked?
Appointments are allowed in limited cases:
- Simple boundary disputes where physical inspection clarifies matters. Ram Biloki and another vs Ramswaroop and others - 2018 Supreme(Online)(MP) 1496
- During trial if ambiguities arise in evidence. Babulal Singh vs Smt. Rampiyari Singh - 2024 Supreme(Online)(MP) 6177
- With judicial discretion; upheld if no jurisdictional error. Sanjay Shrivastava VS Vijay Dua (Dead) Through Lrs Naval - 2022 Supreme(MP) 865
However, even then:
- Report is evidence, not conclusive. Parties can summon the commissioner for cross-examination under Order 26 Rule 10(2).
- No prejudice to parties; reissuance needs strong reasons. M. V. Rathinam & Another VS Padmadevi - 2007 Supreme(Mad) 3362
Strategic Advice for Litigants
- File Early: Seek commissioners promptly with supporting documents.
- Specify Purpose: Limit to elucidation, not proof.
- Exhaust Alternatives: Rely on revenue records first.
- Appeal if Needed: Use Article 227 sparingly for perversity. R.Perumal vs V.Ramasamy
In Mohinder Singh Gill influences and natural justice principles, courts ensure fairness without process abuse. Mohinder Singh Gill VS Chief Election Commissioner, New Delhi - 1977 Supreme(SC) 350
Key Takeaways
- Order 26 Rule 9 cannot be allowed before trial for evidence collection; it's for clarification only.
- Misuse leads to dismissal to prevent delays and multiplicity.
- Trial courts' discretion is wide but must align with CPC limits.
- Always plead reliefs clearly and act timely.
Understanding these nuances helps avoid futile applications. For tailored strategies in property suits, professional legal counsel is essential.
References: Judicial extracts from cases like Whirlpool Corp. v. N.R. Dongre (trade mark context on jurisdiction) Whirlpool Corporation VS Registrar Of Trade Marks, Mumbai - 1998 8 Supreme 176, but primarily CPC-focused rulings provided.
Search Results for "Order 26 Rule 9 CPC: Limits Before Trial Explained"
2012 7 Supreme 1 • India - Supreme Court
R.M.LODHA, SUDHANSU JYOTI MUKHOPADHAYA, ANIL R.DAVE
be exercised as against the express bar of law. ... Criminal Procedure, 1973 - Section 482 - Inherent power to do complete and substantial justice - Should not ... proceeding becoming futile after compromise and compounding of offence - Two different things - By quashing a proceeding Court does not ... something which cannot be done directly cannot be done indirectly. ... Pyare Lal, that the inherent power of the court cannot be exe....
1990 0 Supreme(SC) 740 • India - Supreme Court
S.R.PANDIAN, K.JAYACHANDRA REDDY
otherwise not constrained to express any opinion on this - Held, In the light of the above decisions of this Court, we feel that ... appears to have considerably weighed with the learned Judges in taking the extreme step in quashing the First Information Report - Order ... We are afraid if such a view is to be judicially accepted and approved, then it will be tantamount to laying down an alarming proposition ... Even if he has been wronged, if he is allowed to be left in doubt that wou....
1984 0 Supreme(SC) 181 • India - Supreme Court
A.V.VARADARAJAN, SABYASACHI MUKHARJEE, S.MURTAZA FAZAL ALI
three or four months, statement would be admissible under Section 32 of Evidence Act - This is always not so and cannot be so - ... statements come to light only after death of deceased who speaks from death - As a general proposition, it cannot be laid down for ... positive fact but as an indication of a negative fact, namely raising some doubt about the guilt of accused as in this case - Appeal allowed ... I agree with the order proposed that the a....
1978 0 Supreme(SC) 29 • India - Supreme Court
P. S. KAILASAM, S. MURTAZA FAZAL ALI, V. R. KRISHNA IYER, Y. V. CHANDRACHUD, N. L. UNTWALIA, M. H. BEG, P. N. BHAGWATI
government should exercise the power in a reasonable and respectable manner — abuse of power is vested in the central government cannot ... heard but as soon as the order impounding the passport is made an opportunity of being heard remedial in aim should be given to ... to the person concerned - order impounding the passport should satisfy the mandate of natural justice which is to be read by implication ... Cases are not unknown where people have not been ....
1977 0 Supreme(SC) 350 • India - Supreme Court
M. H. BEG, P. K. GOSWAMI, P. N. BHAGWATI, P. N. SHINGHAL, V. R. KRISHNA IYER
But it cannot be fair if the affected is not apprised and the representation is not considered. ... It will not be without remedy to question every step of election process and every order passed in the process including countermanding ... Democratic rule of law calls for a play of principles of natural justice. ... case After all, it is not obligatory that counsel should be allowed to appear nor ....
• India - Madurai Bench of Madras High Court
Ratio Decidendi: The court relied on the principle that parties cannot be allowed to protract the matter by filing applications ... CIVIL PROCEDURE CODE - ORDER 26 RULE 9 - APPOINTMENT OF ADVOCATE COMMISSIONER - RE-ISSUANCE OF WARRANT - SCRAPPING OF EARLIER ... Finding of the Court: The court held that the petitioners had not taken any steps before the trial court to address ... >Additional Subordinate Court, Dindigul, dismissing th....
2025 Supreme(Online)(HP) 7679 • India - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J
In this judgment, the court analyzed the provisions of Order 26 Rule 9 of the CPC, stating that a Local Commissioner cannot be appointed ... Ultimately, the petitioner’s application was dismissed based on the trial court’s findings. ... The assistance of the Court, as is envisaged under Order 26 Rule 9 of the CPC cannot be granted to the petiti....
2025 Supreme(Online)(MP) 5468 • India - High Court of Madhya Pradesh
DEEPAK KHOT, J
(A) Constitution of India - Article 227 - Civil Procedure Code (CPC) - Order 26 Rule 9 - Application for appointment of a Commissioner ... investigation if substantial evidence already exists regarding encroachment, per Order 26 Rule 9 - Appellate jurisdiction under ... (Paras 2, 5, 9) ... ... (B) Legal Principles - Courts may refuse to order further ... Even otherwise, it is settled principle that investigation/....
2018 Supreme(Online)(MP) 1496 • India - High Court of Madhya Pradesh
G.S. Ahluwalia, J
(Order 26 Rule 9 CPC). ... of a Local Commissioner by the Trial Court. ... The court highlighted that such appointments should not extend to collecting evidence unless a simple boundary dispute is proved ... The Court by passing an order under Order 26 Rule 9 C.P.C. cannot delegate its powers of adjudicating the dispute to a Local Commissioner ... by the respondent in his reply t....
2024 Supreme(Online)(MP) 6177 • India - High Court of Madhya Pradesh
HON'BLE SHRI JUSTICE VINAY SARAF, J
court may exercise its power under Order 26 Rule 9. ... (A) Code of Civil Procedure, 1908 - Order 26 Rule 9 - Petition challenging the dismissal of an application for appointment of a local ... should be exercised judiciously and not merely to fill evidentiary gaps at the final argument stage. ... their case by their evidence and therefore at the stage of final arguments, the application cannot #H....
2021 0 Supreme(MP) 182 • India - Madhya Pradesh
SUBODH ABHYANKAR
Local Commissioner Appointment - Civil Suit - Order 26 Rule 9 of CPC - [Order 26 Rule 9 of CPC] - The court discussed the scope ... of Order 26 Rule 9 of the CPC and its limitations. ... Ratio Decidendi: The court emphasized that the appointment of a commissioner under Order 26 Rule 9 is limited to cases where ... Commissioner under Order 26 Rule 9, CPC. ... This is nothing but m....
2024 0 Supreme(J&K) 53 • India - Jammu and Kashmir
JAVED IQBAL WANI
Article 227 - Specific Relief Act - 1963 - Order 39 Rule (7) and Order 26 Rule (9) of the Code of Civil ... 26 Rule (9) of CPC. ... Court:The Trial Court misdirected itself by invoking the provisions of Order 39 Rule (7) of CPC instead of Order ... The Trial Court, seemingly has grossly misdirected itself and in the process committed grave perversity while passing the impugned order by invoking the provisions of Order 39 Rule (7) of CPC having overlo....
2019 0 Supreme(MP) 603 • India - Madhya Pradesh
VISHAL MISHRA
Order 26 rule 9 of CPC is required to be seen: “9. ... passed by the learned trial Court is beyond the scope of Order 26 rule 9 of CPC and is liable to be quashed.” ... he has no right to file an application under Order 26 rule 9 CPC for appointment of Commissioner for the aforesaid land. ... When the similar prayer was rejected by the #HL_STAR....
2024 Supreme(Online)(Chh) 17331 • India - IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
order dated 06.08.2024, whereby application preferred by Respondent No.1/plaintiff under Order 26 Rule9 CPC was allowed. ... It is a settled position of law that commission application under Order 26, Rule 9 of Civil Procedure Code cannot be allowed for commission for collection of evidence. This Court in the case of Chunnilal vs. ... In these circumstances, plaintiff has filed a....
2022 0 Supreme(MP) 865 • India - Madhya Pradesh
SUSHRUT ARVIND DHARMADHIKARI
The respondent/plaintiff filed an application under Order 26 Rule 9 of CPC for the appointment of a Commissioner to demarcate the ... 26 Rule 9 of CPC. ... 26 Rule 9 of CPC was justified. ... This Court has consistently taken a view that appointment of Commissioner is discretion of the trial Court. If the discretion has been exercised by the Court below, it cannot be said that the Court has committed error of jurisdiction by allowing the application under Order #HL_ST....
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