Appointment of Commissioners for Inspection under the CPC

In Indian civil procedure, the appointment of a Commissioner for inspection/local investigation is primarily governed by Section 75(b) and Order XXVI Rules 9–10 of the Code of Civil Procedure, 1908 (CPC). The purpose is to enable the court to obtain information about physical facts or conditions at the site which may assist it in properly deciding the dispute. Section 75 expressly empowers a court to issue a commission for a local investigation, while Order XXVI Rule 9 lays down the specific conditions for local investigation.

1. Meaning of a Commissioner for Inspection

A Court Commissioner/Local Commissioner is a person appointed by the court to inspect a particular place, property, structure, boundary or other physical feature relevant to the dispute and submit a report to the court.

The Commissioner does not decide the rights of the parties. His or her function is essentially investigative and assistive.

For example, where two parties dispute:

• the location of a boundary;
• encroachment upon land;
• the existence of a wall, road, drain or structure;
• the physical condition of property;
• the dimensions or identification of disputed property;
• the location of doors, windows or passages; or
• other physical features that cannot conveniently be established merely through oral evidence,

the court may consider appointing a Local Commissioner.

2. Statutory Provisions

Section 75, CPC

Section 75 gives the court power to issue commissions, subject to prescribed conditions and limitations. It includes commissions:

1. to examine a person;
2. to make a local investigation;
3. to examine or adjust accounts;
4. to make partition;
5. to conduct scientific, technical or expert investigation;
6. to conduct sale of certain property; and
7. to perform a ministerial act. 

For inspection purposes, Section 75(b) is particularly important.

3. Order XXVI Rule 9 – Local Investigation

Order XXVI Rule 9 is the principal provision concerning appointment of a Commissioner for inspection.

The court may appoint a Commissioner where local investigation is:

• requisite or proper;
• necessary for elucidating a matter in dispute;
• useful for ascertaining the market value of property;
• necessary for determining mesne profits or damages; or
• necessary for determining annual net profits. 

Thus, the provision is discretionary. The court must apply its judicial mind to determine whether inspection will genuinely assist in resolving the controversy.

4. Object of Appointment

The principal object is not to create evidence for a party, but to assist the court in understanding facts that are particularly capable of being ascertained through inspection.

For example:

A claims: "B has encroached upon my land."

Instead of merely relying upon competing oral statements, the court may appoint a Commissioner to inspect the site, measure the property according to the relevant documents or directions of the court, identify physical features and submit a report.

The Commissioner thereby assists the court in understanding the physical situation.

5. When Can a Commissioner Be Appointed?

A Commissioner may be appointed particularly in the following circumstances:

A. Boundary disputes

Where the principal controversy concerns the location or identification of boundaries.

This is one of the most common situations in which local inspection becomes useful.

B. Encroachment disputes

Where one party alleges that the other has constructed:

• a wall,
• room,
• shop,
• shed,
• staircase,
• road,
• drain, etc.,

on disputed property.

C. Identification of property

Where the description in the documents is insufficient to clearly identify the property on the ground.

D. Permanent injunction suits

A Commissioner may inspect the existing physical features relevant to the claim for injunction.

However, the Commissioner cannot be appointed merely to enable the plaintiff to discover evidence that should otherwise be produced by the plaintiff.

E. Measurement and demarcation

Where technical measurement or demarcation is necessary to elucidate the dispute.

F. Physical condition of property

Inspection may be useful where the condition or existence of a structure is relevant.

G. Market value

Order XXVI Rule 9 expressly permits local investigation for ascertaining the market value of property.

6. Who Can Appoint the Commissioner?

The court hearing the civil suit can appoint the Commissioner.

Importantly, appointment does not necessarily depend upon an application by one of the parties. The court can, where appropriate, act suo motu.

The Punjab and Haryana High Court has recognized that the court can issue a local commission on its own where local investigation is necessary to elucidate the matter in dispute.

7. Application by a Party

Usually, a party files an application requesting appointment of a Local Commissioner.

The application should explain:

1. nature of the dispute;
2. why physical inspection is necessary;
3. what exactly should be inspected;
4. why ordinary oral/documentary evidence is insufficient;
5. the relevance of the proposed inspection to the issues; and
6. the specific directions sought for the Commissioner.

The court then considers whether the requirements of Order XXVI Rule 9 are satisfied.

8. Court's Discretion

Appointment under Order XXVI Rule 9 is discretionary.

The court must determine whether inspection is:

"requisite or proper"

for elucidating the dispute.

Therefore, a party does not possess an absolute right to demand appointment of a Commissioner.

The court may refuse the application where:

• the inspection is unnecessary;
• the application is intended merely to collect evidence;
• the party is attempting to fill gaps in its evidence;
• the physical facts are already sufficiently established;
• the proposed inspection has no connection with the issues; or
• the application is frivolous or intended to delay proceedings.

9. Commissioner Cannot Be Used to Collect Evidence

This is one of the most important principles.

A party must normally prove its own case through:

• pleadings;
• documentary evidence;
• oral evidence;
• expert evidence where appropriate; and
• other legally admissible evidence.

The Commissioner cannot be converted into an instrument through which a party obtains evidence that it should itself produce.

The courts have repeatedly emphasized that the purpose of local investigation is to obtain evidence which, because of its peculiar nature, can best be obtained at the spot, rather than to collect evidence generally.

10. Commissioner Is Not a Substitute for Trial

The Commissioner does not replace:

• the judge;
• examination of witnesses;
• cross-examination;
• proof of documents; or
• the normal burden of proof.

The Commissioner only assists the court.

For example, if A claims:

"I purchased this property."

A cannot ordinarily ask for appointment of a Commissioner simply to prove ownership.

Ownership is normally established through appropriate title documents and evidence.

But if the dispute is:

"Where exactly is the property described in the title document situated?"

a local investigation may be appropriate.

11. Inspection Before or During Trial

A Commissioner may be appointed before or during the trial, depending upon the circumstances.

The fact that evidence has not yet been completed does not automatically prevent appointment.

In suitable cases, an early inspection may actually help reduce unnecessary oral evidence because physical facts can be objectively recorded at the site.

The courts have recognized that appointment can be made before commencement of trial where the report is genuinely necessary for elucidating the dispute.

12. Notice to Parties

Order XXVI also regulates the procedure to be followed during execution of the commission.

Ordinarily, the parties are given an opportunity to participate in the inspection.

This is important because the parties may:

• point out relevant features;
• identify boundaries;
• produce relevant documents;
• raise objections concerning the manner of inspection; and
• make submissions within the scope permitted by the Commissioner.

However, the court may, in appropriate circumstances, issue the commission without prior notice where giving notice could defeat the purpose of the investigation. The legal position is that notice before the actual investigation is particularly important under the procedural framework.

13. Powers and Duties of Commissioner

The Commissioner must act strictly within the directions of the court.

Depending upon the commission issued, the Commissioner may:

• inspect the property;
• take measurements;
• identify physical features;
• prepare a site plan;
• record relevant observations;
• take evidence where authorized;
• obtain technical measurements;
• photograph relevant features where permitted;
• note the existence of structures; and
• prepare and submit a report.

The Commissioner cannot exceed the terms of the commission.

14. Commissioner’s Report

After completing the inspection, the Commissioner submits a written report to the court.

Under Order XXVI Rule 10:

• the Commissioner returns the report to the court;
• the report becomes part of the record;
• the evidence taken by the Commissioner may form part of the record; and
• the Commissioner may be examined personally in court concerning the investigation or report.

If the court is dissatisfied with the Commissioner's proceedings, it can direct further inquiry.

15. Is the Commissioner's Report Conclusive?

No.

This is extremely important.

A Commissioner's report is generally a piece of evidence. It does not automatically determine the rights of the parties.

The court must consider it along with:

• pleadings;
• documents;
• oral evidence;
• expert evidence;
• objections to the report; and
• other material on record.

The court may accept, reject or modify the conclusions depending upon the circumstances.

Courts have specifically recognized that a Commissioner's report is not binding upon the trial court merely because a Commissioner has submitted it.

16. Objections to Commissioner's Report

A party dissatisfied with the report may file objections.

For example, a party may contend that:

• the Commissioner exceeded the scope of the order;
• measurements were incorrectly taken;
• relevant documents were ignored;
• the parties were not properly heard;
• the methodology was defective;
• the report contains factual errors; or
• the Commissioner reached conclusions outside his authority.

The court may then:

1. accept the report;
2. reject the report;
3. modify or disregard portions of it;
4. examine the Commissioner; or
5. direct a fresh/further investigation.

17. Important Case Laws

1. Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671

Principle

The Supreme Court dealt with a dispute concerning demarcation of land.

The Court emphasized the usefulness of local investigation where the controversy essentially concerns the identification or demarcation of property.

Importance

This is a leading authority for the proposition that where the dispute involves demarcation of land, appointment of a Local Commissioner may be appropriate.

The case is frequently relied upon in applications under Order XXVI Rule 9.

2. M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit v. Modi Transport Service

Principle

The Supreme Court recognized the wide discretionary power available to the court under Order XXVI Rule 9.

The provision permits investigation where it is necessary for elucidating matters in dispute, including issues relating to property and other matters expressly contemplated by the provision.

Importance

The case demonstrates that Order XXVI Rule 9 should be applied according to the circumstances of each case rather than through a rigid formula.

The Supreme Court's discussion of the breadth of the power under Order XXVI Rule 9 has subsequently been relied upon by High Courts.

3. Amulya Kumar v. Annada Charan, AIR 1933 Cal 475

Principle

The purpose of local investigation is not primarily to collect evidence which can conveniently be produced in court.

Rather, the object is to obtain evidence which, because of its peculiar nature, can best be obtained by inspecting the site.

Importance

This case establishes the fundamental distinction between:

legitimate local investigation

and

impermissible evidence collection.

It remains useful for understanding the underlying purpose of Order XXVI Rule 9.

4. Maroli Achuthan v. Kunhipathumma, AIR 1968 Ker 28

Principle

The power under Order XXVI Rule 9 is discretionary.

A court may appoint a Commissioner where local investigation is necessary for proper determination of the controversy.

Importance

The case is also relevant to the procedural question of whether the court can issue a commission before the defendant has entered appearance in appropriate circumstances.

The decision recognizes that there may be situations in which advance notice could defeat the very purpose of the investigation.

5. O.D. Harry v. G. Krishna, 1983 (1) ALT (NRC) 29

Principle

The court has power to appoint a Commissioner to inspect and record peculiar physical features of the suit property, particularly where those features are relevant to a claim for injunction.

Importance

This case is particularly useful in suits concerning:

• buildings;
• walls;
• passages;
• physical structures;
• boundaries; and
• other existing physical features.

The Commissioner may be directed to record the physical situation without being authorized to decide the legal rights of the parties.

6. Saraswathy v. Viswanathan, (2002) 2 CTC 199

Principle

The object of appointment of a Commissioner is not to enable a party to collect evidence.

The purpose is to elucidate matters of a local character that can properly be determined through investigation at the spot.

Importance

This decision reinforces the limitation on the power under Order XXVI Rule 9.

A party cannot use a commission merely because its evidence is weak or incomplete.

7. Teena Pandey v. Dr. Kirnesh Pandey

The court explained that a Local Commissioner may be appointed where local investigation is required for elucidating a matter in dispute.

It also emphasized that the Commissioner's report is a piece of evidence and is not automatically binding upon the trial court.

The court further recognized the relevance of Order XXVI Rule 9 in disputes involving demarcation of land.

8. Rajinder Paul v. Salig Ram

The court emphasized that:

• the court can appoint a Commissioner suo motu;
• appointment is discretionary;
• local investigation must genuinely assist in elucidating the dispute; and
• the Commissioner should not be appointed merely to collect evidence.

It also recognized the appropriateness of local investigation in suitable boundary disputes.

18. Appointment in Property and Injunction Suits

Appointment of a Local Commissioner is particularly common in property litigation.

Suppose the plaintiff alleges:

"The defendant has constructed a wall on my land."

The court may appoint a Commissioner to:

1. inspect the disputed property;
2. identify the wall;
3. measure the relevant area;
4. note adjoining structures;
5. prepare a site plan; and
6. report the physical position to the court.

However, the Commissioner should not decide:

"The plaintiff is the legal owner."

That is a matter for the court.

19. Can Commissioner Be Appointed in an Injunction Suit?

Yes.

A Local Commissioner can be appointed in an injunction suit where inspection of physical features would help the court determine the controversy.

For example, where the dispute concerns:

• existing construction;
• obstruction;
• encroachment;
• location of a wall;
• passage;
• access;
• physical condition of the property,

inspection may be appropriate.

But the mere filing of an injunction suit does not automatically entitle a party to a commission.

20. Can Commissioner Be Appointed to Find Out Encroachment?

Yes, where the factual circumstances justify it.

Encroachment is often a physical question requiring:

• measurement;
• identification of boundaries;
• comparison with relevant documents; and
• inspection of the actual site.

Therefore, local investigation can be particularly useful.

But the Commissioner must remain within the scope of the court's order.

21. Fresh Commissioner

A second Commissioner should not ordinarily be appointed merely because a party dislikes the first report.

A fresh investigation may become appropriate where:

• the first investigation was materially defective;
• the Commissioner failed to follow the court's directions;
• relevant facts were not investigated;
• the report is unreliable;
• the court is dissatisfied with the proceedings; or
• further investigation is genuinely necessary.

Where an earlier satisfactory demarcation already exists, a subsequent commission should not be ordered merely to create another piece of evidence.

22. Commissioner and Burden of Proof

Appointment of a Commissioner does not transfer the burden of proof.

If the plaintiff has to prove ownership or encroachment, that burden remains on the plaintiff.

The Commissioner merely assists the court with matters that are appropriately capable of local investigation.

Thus:

Commission ≠ shifting burden of proof.

23. Commissioner and Expert Investigation

Section 75 also permits commissions for scientific, technical or expert investigation.

This becomes important where the dispute requires specialized technical knowledge.

For example:

• engineering examination;
• structural condition;
• technical measurement;
• scientific testing;
• specialized valuation.

The court may appoint an appropriate person according to the nature of the inquiry.

24. Limitations on the Power

The court should exercise the power carefully.

A Commissioner should generally not be appointed:

1. merely to collect evidence for a party;
2. to fill a lacuna in evidence;
3. to determine questions of law;
4. to decide title;
5. to decide ownership;
6. to determine final legal rights;
7. merely because a party is unable to prove its case;
8. for a fishing and roving inquiry; or
9. simply to delay the trial.

The central test remains whether the local investigation is requisite or proper for elucidating the dispute.

25. Procedure in Simple Steps

The process can be understood as follows:

Step 1: A civil suit is pending.

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Step 2: A party files an application under Section 75 and Order XXVI Rule 9 CPC, or the court considers the matter suo motu.

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Step 3: Court examines whether local investigation is necessary.

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Step 4: Court passes an order appointing a suitable Commissioner.

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Step 5: Court specifies the scope and directions of inspection.

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Step 6: Commissioner conducts inspection.

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Step 7: Measurements, physical features and other relevant facts are recorded.

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Step 8: Commissioner prepares and submits the report.

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Step 9: Parties may raise objections.

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Step 10: Court considers the report along with other evidence.

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Step 11: If necessary, Commissioner may be examined or further investigation may be ordered.

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Step 12: Court ultimately decides the dispute.

26. Difference Between Commissioner and Judge

27. Key Legal Principles to Remember

For examination purposes, the following principles are particularly important:

1. Section 75(b) CPC provides the statutory power for local investigation.
2. Order XXVI Rule 9 CPC governs local investigation.
3. Appointment is discretionary, not an absolute right.
4. The investigation must be requisite or proper for elucidating the dispute.
5. A Commissioner may be appointed suo motu.
6. Boundary and demarcation disputes are classic situations for local investigation.
7. A Commissioner should not be appointed merely to collect evidence.
8. The Commissioner cannot decide questions of title or legal rights.
9. The Commissioner's report is generally evidence but not conclusive evidence.
10. Parties may object to the report.
11. The court may examine the Commissioner.
12. The court may order further investigation if dissatisfied with the report.
13. A second commission should not ordinarily be used simply to obtain a favourable report.
14. The ultimate decision always remains with the court.

Conclusion

The appointment of a Commissioner for inspection is an important procedural mechanism under the Code of Civil Procedure, 1908. Its primary purpose is to assist the court in discovering or recording physical facts that are best ascertainable through local investigation. It is especially valuable in boundary, encroachment, demarcation, construction and property disputes. At the same time, the power must be exercised judicially because a commission cannot become a device for collecting evidence or repairing deficiencies in a party's case. The Commissioner's report assists the court but does not substitute the court's own judicial determination.