The Madhya Pradesh High Court at Gwalior has reaffirmed a foundational principle of civil litigation: a Court Commissioner under Order XXVI Rule 9 CPC cannot be appointed to collect evidence on behalf of a party who has failed to discharge their burden of proof. This judgment provides critical clarity on the limited scope of local investigations and prevents procedural misuse in property disputes.
Background & Facts
The Dispute
The dispute arose from allegations that the petitioners (defendants No. 1 and 2) had constructed buildings on their plot bearing Survey No. 1206, Village Mahalgaon, Jhansi Road, Gwalior, in violation of the sanctioned building plan issued by the Gwalior Municipal Corporation. The respondent (plaintiff) alleged that the petitioners had encroached upon the Mandatory Open Space (MOS) area, which is required to remain vacant under municipal regulations.
Key Facts
- The petitioners contended that the construction was completed long before the dispute arose and strictly complied with the sanctioned plan.
- They submitted that any minor deviation, if present, had been lawfully compounded by the Municipal Corporation.
- The respondent filed an application under Section 307(5) of the M.P. Municipal Corporation Act, 1956, seeking action against the alleged violations.
- No documentary evidence, photographs, survey maps, or municipal inspection reports were produced by the respondent to substantiate the allegations.
- The respondent did not lead any oral evidence during the trial proceedings.
Procedural History
- Date of Alleged Violation: Not specified, but construction claimed to be completed prior to filing of application.
- Date of Application: Respondent filed application under Order XXVI Rule 9 CPC seeking appointment of Court Commissioner on an unspecified date prior to 11.09.2025.
- 11.09.2025: XII District Judge, Gwalior, allowed the application and appointed a licensed draftsman of the Municipal Corporation as Court Commissioner to inspect the construction and submit a report.
- 2025: Petitioners filed the present Miscellaneous Petition under Article 227 of the Constitution challenging the order.
- 24.03.2026: Judgment delivered by the High Court of Madhya Pradesh at Gwalior.
The Parties' Positions
For the Petitioners
- Argued that the appointment of a Commissioner under Order XXVI Rule 9 CPC was impermissible because the respondent had not adduced any evidence to establish a prima facie case.
- Contended that the provision cannot be used as a tool to shift the burden of proof from the plaintiff to the Court.
- Relied on settled principles that parties must prove their own case through oral and documentary evidence.
For the Respondent
- Supported the trial court’s order, asserting that the Court has inherent power to appoint a Commissioner to ascertain the actual physical position of the construction.
- Argued that local investigation is necessary to resolve disputes regarding unauthorized construction.
Relief Sought
The petitioners sought quashing of the order dated 11.09.2025 appointing the Court Commissioner and a direction that the respondent must first lead evidence before any such appointment is considered.
The Legal Issue
Can a Court appoint a Commissioner under Order XXVI Rule 9 CPC to collect evidence on behalf of a plaintiff who has failed to discharge the burden of proving allegations of unauthorized construction?
Arguments Presented
For the Petitioner
The petitioners relied on the settled legal principle that Order XXVI Rule 9 CPC is not a mechanism for evidence collection. They cited Haryana Waqf Board v. Shanti Sarup and Durga Prasad v. Parveen Foujdar to argue that the provision applies only when the Court needs to elucidate a matter already partially established by evidence - such as demarcation or encroachment disputes. They emphasized that the respondent had not produced any material to show deviation from the sanctioned plan, making the Commissioner’s appointment a substitute for proof, which is legally impermissible.
For the Respondent
The respondent argued that the trial court has discretionary power to appoint a Commissioner at any stage to ascertain the physical condition of the property. They contended that in construction-related disputes, visual inspection is essential and that the Court’s initiative under Rule 9 is not contingent on prior evidence.
The Court's Analysis
The Court undertook a detailed examination of Order XXVI Rule 9 CPC and its judicial interpretation. It emphasized that the provision is not a substitute for the parties’ duty to prove their case. The Court observed:
"The report of Commissioner is merely a piece of evidence and not binding on the Trial Court. It can be used for the purpose of appreciating the evidence come on record."
The Court distinguished between cases where local investigation is genuinely required to clarify a disputed fact - such as boundary demarcation or encroachment where physical boundaries are unclear - and cases where the entire allegation rests on unsubstantiated claims. In the present case, the respondent had not produced any sanctioned plan, photographs, municipal violation notices, or survey records. The application under Rule 9 was thus an attempt to use the Court’s machinery to gather evidence that the plaintiff had not bothered to collect.
The Court further held that while Haryana Waqf Board and Durga Prasad permit appointment of Commissioners in encroachment or demarcation disputes, these precedents presuppose that there is a genuine dispute over physical boundaries or spatial extent, not mere allegations of construction violation without supporting material. The Court noted:
"Issues relating to alleged unauthorized construction are ordinarily required to be established by the parties by leading appropriate evidence."
It concluded that the trial court had misapplied its discretion by allowing the application without requiring the plaintiff to first establish a prima facie case. The appointment of the Commissioner was not for elucidation but for evidence collection - a clear violation of procedural fairness and the adversarial system.
The Verdict
The petition succeeded. The High Court set aside the order dated 11.09.2025 appointing the Court Commissioner. The respondent is at liberty to file a fresh application under Order XXVI Rule 9 CPC, but only after adducing sufficient evidence to demonstrate a genuine need for local investigation. No costs were awarded.
What This Means For Similar Cases
Commissioner Cannot Be a Substitute for Evidence
- Practitioners must ensure that applications under Order XXVI Rule 9 CPC are filed only after the party has presented some prima facie evidence - such as photographs, sanctioned plans, municipal orders, or survey records.
- Courts must scrutinize whether the request for a Commissioner is to clarify a disputed fact or to fill evidentiary gaps left by the applicant.
Burden of Proof Remains With the Plaintiff
- In construction violation cases under municipal laws, the burden lies squarely on the complainant to prove deviation from sanctioned plans.
- A mere allegation without supporting documentation cannot justify a Court Commissioner’s appointment.
Procedural Discipline in Civil Litigation
- The judgment reinforces that civil procedure must not be weaponized to shift the burden of proof.
- Courts are cautioned against using Rule 9 as a shortcut to avoid the rigors of evidence recording.
