The Bombay High Court has reaffirmed a foundational principle of civil litigation: the appointment of a court commissioner must not precede the conclusion of oral evidence. This ruling restores procedural balance, ensuring that parties are not prejudiced by premature evidentiary interventions that bypass cross-examination and adversarial testing.
Background & Facts
The Dispute
The petitioner, Govind Tukaram Gangatire, was the original defendant in Regular Civil Suit No. 19/2015. The respondent sought the appointment of a court commissioner to inspect and report on disputed property matters. The Trial Court granted this request by order dated 05/08/2019, before any oral evidence had been recorded.
Procedural History
The petitioner challenged this order through a writ petition under Article 226 of the Constitution. The key procedural milestones include:
- 05/08/2019: Trial Court allowed application Exhibit 29 for appointment of court commissioner
- 16/12/2019: Writ petition filed before the Bombay High Court, Aurangabad Bench
- 12/02/2026: Final hearing and disposal of the petition
Relief Sought
The petitioner sought quashing of the impugned order and a direction that the court commissioner’s report be sealed until after the completion of oral evidence by both parties.
The Legal Issue
The central question was whether a court commissioner may be appointed under Order XXVI Rule 9 of the Code of Civil Procedure before the recording of oral evidence has commenced, and whether such premature appointment violates the principles of natural justice and fair trial.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on a series of precedents from the Bombay High Court, including Syed Mushtaque Ahmad Syed Ismail v. Syed Ashique Ali Khan Hatdar, Nalubai Shinde v. Gopinath Shinde, and Dhondiba Bapu Zaware v. Santosh Paraji Zaware, to argue that court commissioners are meant to assist the court only after evidence is complete. He contended that early appointment undermines the right to cross-examine, creates risk of bias, and violates Article 14 and Article 21 of the Constitution.
For the Respondent
The respondent argued that the commissioner’s role was purely investigative and non-adjudicatory, and that early appointment would expedite resolution. He cited no binding precedent to justify deviation from established practice, relying instead on the Trial Court’s discretionary powers under Order XXVI Rule 9.
The Court's Analysis
The Court examined the purpose and scope of court commissioners under Order XXVI Rule 9 and emphasized that their function is auxiliary, not substitutive. The Court observed that the appointment of a commissioner before evidence is recorded deprives parties of the opportunity to challenge findings through cross-examination, thereby violating the right to be heard.
"The role of a court commissioner is not to take evidence in lieu of the Court, but to assist the Court after the parties have had their say. To appoint one before oral evidence begins is to reverse the sequence of justice."
The Court reviewed its own consistent jurisprudence across twelve prior judgments, all holding that commissioners should be appointed post-evidence. It rejected the notion that expediency justifies procedural deviation, stating that fair procedure is not optional. The Court further noted that the Trial Court’s order was not merely erroneous but fundamentally contrary to the structure of civil trial under the CPC.
The Verdict
The petitioner succeeded. The Court held that the appointment of a court commissioner before the conclusion of oral evidence is impermissible and directed the Trial Court to preserve the commissioner’s report in a sealed envelope until after both parties have led their evidence.
What This Means For Similar Cases
Appointment of Court Commissioners Is Post-Evidence Only
- Practitioners must oppose any application for commissioner appointment prior to the close of oral evidence
- Trial courts must be reminded that Order XXVI Rule 9 does not authorize pre-evidence investigations
- Any report prepared prematurely must be sealed and not disclosed until after cross-examination
Procedural Violations Invalidate Evidentiary Outputs
- Evidence collected by a commissioner before oral testimony is not admissible as substantive proof
- Parties may move to exclude such reports on grounds of violation of natural justice
- Courts must treat such reports as preliminary and non-binding unless validated through adversarial testing
Judicial Discretion Has Limits in Civil Procedure
- Discretion under Order XXVI cannot override the mandatory sequence of trial under the CPC
- Expediency cannot override the foundational structure of adversarial proceedings
- Counsel must cite the twelve cited precedents to reinforce this settled position in trial courts
