The Orissa High Court has held that there is no legal bar to the appointment of a Survey Knowing Amin Commissioner under Order 26 Rule 9 of the CPC prior to the commencement of evidence, especially in suits concerning easementary rights or physical features of property. The decision affirms and applies prior precedents, clarifies that such appointments are within the Trial Court’s discretion, and serves as binding authority for subordinate courts in similar contexts.
Summary
| Category | Data |
|---|---|
| Case Name | CMP/473/2016 of Dhamali Patel Vs Plant Manager, LPG Bottling Plant |
| CNR | ODHC010416392016 |
| Date of Registration | 21-03-2016 |
| Decision Date | 31-10-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | MR. JUSTICE ANANDA CHANDRA BEHERA |
| Court | Orissa High Court |
| Precedent Value | Binding on subordinate courts within Orissa; persuasive for other High Courts |
| Overrules / Affirms | Affirms existing precedent |
| Type of Law | Civil Procedure |
| Questions of Law | Whether a commissioner can be appointed under Order 26 Rule 9 of the CPC for local investigation before the commencement of trial evidence. |
| Ratio Decidendi (3–8 sentences) |
The High Court held that there is no prohibition under law against appointing a Survey Knowing Amin Commissioner under Order 26 Rule 9 CPC before the recording of evidence. Appointment of such a commissioner for the limited purpose of investigating and reporting on the physical features of property assists the court in the just and effective adjudication of suits, particularly in easement rights disputes. The report of the commissioner is treated as a piece of evidence, the weight of which will be determined by the court. The court affirmed that such deputation need not wait for evidence or issues to be framed and causes no prejudice to any party. The trial court’s contrary approach was erroneous and the impugned order was set aside. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | Prior High Court decisions interpreting Order 26 Rule 9 CPC; rationale that local investigation facilitates effective justice and does not constitute evidence collection but spot verification. |
| Facts as Summarised by the Court | The plaintiff filed a suit for declaration of easementary right of passage and sought appointment of a survey knowing Amin Commissioner before evidence, to determine the physical features of the suit land. The trial court rejected the application, reasoning no material evidence beyond pleadings existed. On challenge, the High Court examined the correct legal position. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within the territorial jurisdiction of Orissa High Court |
| Persuasive For | Other High Courts and courts across India in civil procedure and local investigation matters |
| Follows |
|
What’s New / What Lawyers Should Note
- Reaffirms that appointment of a commissioner under Order 26 Rule 9 CPC may be done even before the commencement of evidence.
- Clarifies that there is no statutory bar or procedural prohibition against such appointment prior to trial stage in suits involving physical features (e.g., easement rights).
- Confirms that commissioner’s report is a piece of evidence, and its value is to be assessed alongside other record evidence.
- Rejects the notion that absence of other material (besides pleadings) justifies denial of commissioner appointment at preliminary stages.
- Strengthens the strategy for plaintiffs and defendants in property/right-of-way suits to seek early spot investigation by consent or court order.
Summary of Legal Reasoning
The court began by examining the petition under Order 26 Rule 9 CPC, noting it sought appointment of a Survey Knowing Amin Commissioner to investigate and report on the physical features of the disputed passage. The trial court had rejected the plea, reasoning that there was nothing beyond pleadings to necessitate such appointment prior to evidence. The High Court disagreed, citing authoritative precedents:
- In Mundladinne Gopal Reddy v. P. Ramachandra Reddy, it was held that a commissioner can be appointed before issues are framed or evidence is led.
- In Korada Murali v. Srinivas Sahu & Another, the court stated that a commissioner may be appointed solely to note physical features, without prejudicing the parties.
- Ram Ujagar & Another v. Smt. Kailasha & Others distinguished that such appointment is not for evidence collection, but for obtaining evidence regarding features that can only be appreciated on site.
- Smt. Asha Devi & Others v. Bhollu Ram & Another determined that a commissioner’s report is a valuable piece of evidence to assist the court to properly evaluate the record.
The High Court concluded there was no procedural bar to appointing a commissioner at the preliminary stage and that doing so assists justice, especially in property and easement disputes. The impugned trial court order was set aside and directions were issued for appointment of the commissioner and expeditious trial.
Arguments by the Parties
Petitioner
- Sought appointment of a survey knowing Amin Commissioner for local investigation under Order 26 Rule 9 CPC to ascertain the physical features of the suit land.
- Argued that the suit, concerning declaration of easement rights, necessitated spot verification by a commissioner.
Respondent No. 2
- Objected that the nature and features of the suit land could be ascertained from the village map maintained by the revenue authorities.
- Raised that appointment of a commissioner was premature before commencement of evidence.
Respondent No. 1
None appeared.
Factual Background
The dispute involved a suit filed by the plaintiff seeking declaration of easementary right of passage over certain land, alleging it as the only access from the plaintiff’s house to the main road. The plaintiff applied prior to evidence for the appointment of a survey knowing Amin Commissioner to report the physical features of the passage in question. The trial court rejected this application, prompting the plaintiff to invoke Article 227 of the Constitution before the High Court to challenge this rejection.
Statutory Analysis
The court interpreted Order 26 Rule 9 of the Civil Procedure Code, 1908, which deals with local investigations by a commissioner. It clarified that the statute does not impose any limitation as to the timing of the appointment, whether before or after the commencement of evidence or framing of issues. The court affirmed that the central purpose of the provision is to assist in ascertaining matters that can best be verified by a site visit, and the report is to be treated as a piece of evidence.
Dissenting / Concurring Opinion Summary
No dissenting or concurring opinions were recorded in the judgment.
Procedural Innovations
- The judgment directed the trial court to proceed expeditiously in accordance with Supreme Court guidelines for speedy disposal of suits.
- Directions were given for the parties to appear with the certified copy of the order and receive further instructions for implementation.
Alert Indicators
- ✔ Precedent Followed – The decision affirms and applies binding precedent on the timing and scope of commissioner appointment under Order 26 Rule 9 CPC.