The Karnataka High Court, Kalaburagi Bench, has reaffirmed the necessity of appointing a Court Commissioner for local inspection under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) when disputes over property identity, location, or measurement exist. The judgment underscores that denying such an application can occasion failure of justice, particularly where factual disputes require on-site verification beyond documentary evidence.
Background & Facts
The Dispute
The petitioner, Prakash s/o Sharanappa Tuppad, filed a civil suit (O.S. No. 302/2016) before the Civil Judge and JMFC, Sindagi, seeking a declaration and mandatory injunction concerning a disputed immovable property. The respondent, Malakappa s/o Bhimappa Nigadi, contested the suit, denying the petitioner’s allegation of illegal encroachment on the eastern portion of the suit schedule property. The parties disagreed on the location, identity, measurement, and schedule of the property, necessitating factual verification.
Key Facts
- The petitioner alleged that the respondent had trespassed and encroached upon a portion of the suit property.
- The respondent denied the allegation, leading to a factual dispute over the property’s boundaries and extent.
- The petitioner filed I.A. No. XII under Order XXVI Rule 9 CPC, seeking appointment of the Assistant District Legal Remembrancer (ADLR) of Sindagi as a Court Commissioner to conduct a local inspection of the suit property and submit a report.
- The respondent opposed the application, arguing that it would amount to collection of evidence.
Procedural History
- Date of Suit Institution: O.S. No. 302/2016 filed before the Civil Judge and JMFC, Sindagi.
- 14.02.2025: Trial Court rejected I.A. No. XII, holding that the application would tantamount to collection of evidence.
- 2025: Petitioner filed Writ Petition No. 200784 of 2025 under Article 227 of the Constitution of India before the Karnataka High Court, Kalaburagi Bench.
- 22.06.2026: High Court delivered the present judgment.
Relief Sought
The petitioner sought:
- Quashing of the impugned order dated 14.02.2025 passed by the trial court.
- Allowance of I.A. No. XII under Order XXVI Rule 9 CPC for appointment of a Court Commissioner.
- Direction for local inspection of the suit property to resolve the factual dispute.
The Legal Issue
The central question was whether the trial court erred in rejecting an application under Order XXVI Rule 9 CPC for appointment of a Court Commissioner to conduct local inspection, where a genuine dispute existed regarding the identity, location, and measurement of the suit property.
Arguments Presented
For the Petitioner
- Contended that the trial court’s rejection of I.A. No. XII was arbitrary and unjust, as the dispute over the property’s boundaries required on-site verification.
- Relied on the Supreme Court’s judgment in Rahul S. Shah v Jinendra Kumar Gandhi and Others ((2021) 6 SCC 418), which held that appointment of a Court Commissioner is necessary where factual disputes over property cannot be resolved through documentary evidence alone.
- Argued that no prejudice would be caused to the respondent, as he would be entitled to participate in the commission work, file objections, and examine/cross-examine the Court Commissioner.
For the Respondent
- Opposed the application, contending that appointment of a Court Commissioner would amount to collection of evidence, which is beyond the scope of Order XXVI Rule 9 CPC.
- Argued that the trial court had discretion to reject the application if it deemed the same unnecessary.
The Court's Analysis
The High Court examined the principles governing Order XXVI Rule 9 CPC, which empowers courts to appoint commissioners for local inspections where disputes over property identity, location, or measurement exist. The Court emphasized that such appointments are not merely discretionary but mandatory where factual disputes cannot be resolved through documentary evidence alone.
The Court relied on the following key precedents:
"In Rahul S. Shah v Jinendra Kumar Gandhi and Others ((2021) 6 SCC 418), the Supreme Court held that appointment of a Court Commissioner under Order XXVI Rule 9 CPC is essential where disputes over property boundaries or measurements exist, as documentary evidence alone may not suffice to resolve such disputes."
"In Shadaksharappa v Kumari Vijayalaxmi and Others (ILR 2023 KAR 3983), the Karnataka High Court reiterated that denial of an application for local inspection, where a genuine dispute exists, can occasion failure of justice."
The Court observed that the trial court had failed to appreciate the petitioner’s contention that the respondent had encroached upon a portion of the suit property. The dispute over the location, identity, and measurement of the property necessitated a local inspection to resolve the factual matrix. The Court further noted that the respondent would not suffer any prejudice, as he would be entitled to participate in the commission work, file objections, and examine/cross-examine the Court Commissioner.
The Court held that the trial court’s impugned order clearly occasioned failure of justice, warranting interference under Article 227 of the Constitution of India.
The Verdict
The High Court allowed the writ petition and set aside the impugned order dated 14.02.2025 passed by the Civil Judge and JMFC, Sindagi. The Court directed:
- I.A. No. XII filed under Order XXVI Rule 9 CPC is hereby allowed.
- The ADLR of Sindagi is appointed as the Court Commissioner to conduct a local inspection of the suit schedule property and submit a report.
- Both parties are granted liberty to file memos of instructions before the Court Commissioner.
- Both parties are granted liberty to file objections to the Commissioner’s Report and examine/cross-examine the Commissioner.
- All rival contentions on the merits of the case, including the Commissioner’s Report, are kept open for adjudication.
What This Means For Similar Cases
Court Commissioner Appointment Is Not Discretionary Where Factual Disputes Exist
- Practitioners must argue that Order XXVI Rule 9 CPC imposes a mandatory duty on courts to appoint a Court Commissioner where disputes over property identity, location, or measurement exist.
- Denial of such an application can be challenged under Article 227 of the Constitution, as it may occasion failure of justice.
No Prejudice to Opposing Party
- Courts must ensure that appointment of a Court Commissioner does not prejudice the opposing party. The opposing party retains the right to:
- Participate in the commission work.
- File objections to the Commissioner’s Report.
- Examine/cross-examine the Court Commissioner.
Local Inspection Is Crucial for Property Disputes
- Where disputes over boundaries, encroachments, or measurements exist, documentary evidence alone may not suffice. Courts must prioritize on-site verification to resolve such disputes.
- Practitioners should highlight specific factual disputes in their applications to justify the need for a Court Commissioner.
