The Madhya Pradesh High Court had turned down an application under Order 26 Rule 9 of CPC for the appointment of Commission on finding that the applicant hadn't proved his case by giving evidence.
The Court made it clear that it is well-settled law that in application invoked under Order 26 Rule 9 of CPC, the plaintiff is required to prove his case by giving evidence first and only then the commission can be assigned.
The respondent herein had alleged his petitioner wife of raising construction contrary to the map assigned on property he brought under her name before having the matrimonial dispute with her. He stated that she hadn't paid any sum in the sale deed.
He filed the Suit for declaration, title and permanent injunction that defendant be restrained not to raise the construction contrary to the sanctioned map.
The petitioner/wife denied the allegations and when the trial court hadn't decided anything application filed under Order 39 Rule 1-2 of the CPC, it did allowed application under Order 29 Rule 9 of CPC seeking appointment of any engineer of Municipal Corporation as a Commissioner for submitting a report after inspection of site whether the defendant no.1 is raising the constructing contrary to the sanctioned map or not.
Thus she filed plea in High Court to set aside the impugned order.
What is Order 26 Rule 9 of CPC ?
The provisions of Order XXVI Rule 9 of the CPC are very clear and for the ready reference the same is reproduced below :-
“9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court : Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”
The High Court made out that It is that during pendency of the trial and before the judgment if the Trial Court finds that any issue requires clarification or elucidation, the Court may suomoto appoint Commissioner to submit the report for which no application is required.
It said that the scope of Order 26 Rule 9 of the CPC is very limited. The Trial Court in any suit in which a local investigation is required or proper for purpose of elucidating any matter of dispute may appoint a Commissioner. It is settled law that the parties are required to prove their own case by way of evidence, therefore, it is the duty of plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if Court deems it proper that any issue requires clarification then the Court may appoint a Commissioner. 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 came on record.
By looking at the case in hand, the Court cleared that respondent hadn't provided any evidence to prove his case and thus he couldn't avail benefits of Order 29 Rule 9 of CPC.
It thus set aside the impugned Trial Court order by turning the application invoked under Order 29 Rule 9 of CPC.
The Judgement has been delivered by Justice Vivek Rusia on 08-07-2019.
Read Judgement Here:
