The Orissa High Court affirms that there is no legal bar to appointing a Survey Knowing Amin Commissioner under Order 26 Rule 9 of the CPC before commencement of evidence, particularly in suits relating to easement rights. The judgment upholds and clarifies existing precedents, confirming its binding nature on all subordinate civil courts within the state.
Summary
| Category | Data |
|---|---|
| Case Name | CMP/473/2016 of Dhamali Patel Vs Plant Manager, LPG Bottling Plant, Jharsuguda & Another |
| 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 authority for subordinate civil courts in Orissa on appointment of a commissioner for local investigation under Order 26 Rule 9 CPC before evidence. |
| Overrules / Affirms | Affirms and elucidates principles from cited High Court precedents. |
| Type of Law | Civil Procedure |
| Questions of Law | Whether the trial court can appoint a commissioner for local investigation under Order 26 Rule 9 of the CPC before evidence is led, particularly in an easement/right of way suit. |
| Ratio Decidendi | The High Court held that there is no prohibition in law against deputing a survey knowing Amin Commissioner under Order 26 Rule 9 CPC before evidence is led. The object of such appointment is to enable the court to obtain evidence regarding the physical features of the suit property, which assists in just adjudication. Such appointment does not cause prejudice to either party. The trial court erred by rejecting the application on the ground that evidence had not yet commenced. Cited precedents reinforce that a commission can be issued at various stages, and its report is a piece of evidence to be evaluated along with other material. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | The Court interpreted Order 26 Rule 9 of CPC not as a device for evidence collection but as a means to inform the court about facts ascertainable only by spot investigation. The authorities make clear that an early appointment of a commissioner does not prejudice either party and assists the court in effective adjudication. |
| Facts as Summarised by the Court | Plaintiff filed a suit for declaration of easement/right of way over land, asserting the path was the only access route to the main road. Before evidence began, he applied for appointment of an Amin Commissioner for local investigation. Defendant No.2 objected, citing sufficiency of revenue records/maps. The trial court dismissed the application before evidence, which was challenged in this petition. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate civil courts in Orissa deciding applications under Order 26 Rule 9 CPC. |
| Persuasive For | Other High Courts and trial courts outside Orissa in similar civil procedural contexts, especially in easement and property disputes. |
| Follows |
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What’s New / What Lawyers Should Note
- The High Court clarifies that there is no legal bar to appointment of a commissioner for local investigation under Order 26 Rule 9 CPC before evidence is led in a suit.
- The intended object is not to collect evidence but to aid the court in understanding physical features at the locus.
- The report of a commissioner, even if obtained before evidence, is a piece of evidence and does not, by itself, prejudice any party.
- Lawyers may use this judgment to support early appointment of a commissioner, especially in land, easement, and property disputes.
- Objections that applications under Order 26 Rule 9 CPC are premature before evidence commence have been rejected.
Summary of Legal Reasoning
- The Court recounted the factual circumstances, noting the suit was for declaration of right of easement and the application was for local investigation prior to evidence.
- Citing four precedents, the Court found no prohibition under the CPC against such appointment at a pre-evidence stage.
- The cited decisions uniformly hold that commission for local investigation may be issued at any stage and is intended for ascertaining spot conditions, not collection of substantive evidence.
- The trial court’s reasoning, predicated on the lack of evidence beyond pleadings, was faulted as inconsistent with the very object and jurisprudence of Order 26 Rule 9 CPC.
- The Court directed that the commission be issued and emphasized such procedure assists in just and proper decision, with no resulting prejudice to parties.
Arguments by the Parties
Petitioner:
- Sought appointment of a Survey Knowing Amin Commissioner to determine the existing nature and physical features of the disputed passage/way.
- Submitted that such appointment before evidence is crucial for proper adjudication of the right of easement.
- Challenged the trial court’s refusal to appoint a commissioner as erroneous in law.
Respondent (Defendant No.2):
- Objected that nature and features could be ascertained from existing revenue/village maps maintained by authorities.
- Argued that appointment of a commissioner before commencement of evidence was unwarranted and not mandated by law.
Factual Background
The plaintiff instituted a civil suit seeking declaration of his right of easement of way over a parcel of land, alleging it was the only access path from his residence to the Sundergarh-Jharsuguda main road. Before the commencement of evidence, he filed an application under Order 26 Rule 9 CPC for appointment of a Survey Knowing Amin Commissioner to conduct a spot investigation and report on physical features of the suit land. Defendant No.2 opposed, stating the information was available in village/revenue maps. The trial court dismissed the application before evidence was led, prompting the present revision under Article 227.
Statutory Analysis
- The Court interpreted Order 26 Rule 9 of the Civil Procedure Code, 1908.
- Emphasized that this provision allows the court to appoint a commissioner at any stage to clarify issues which require spot examination.
- Noted that the provision’s object is to enable the court to obtain evidence of facts observable only at the suit property.
- Confirmed that the commission’s report is to be evaluated as evidence but is not conclusive by itself.
Procedural Innovations
- The judgment directs the trial court to expeditiously implement the directions with reference to Supreme Court guidelines for early and speedy disposal of suits.
- Orders the parties to appear before the trial court on a specific date to facilitate compliance.
Alert Indicators
- ✔ Precedent Followed – The judgment affirms and provides clarity to existing legal principles regarding appointment of commissioners under Order 26 Rule 9 CPC.