Introduction:

In the case titled Pandit Vithal Landage v. Vishnu Govind Pawar and Anr. [Writ Petition No.5158 of 2024], the Bombay High Court decisively settled an important legal point concerning the scope of the Civil Procedure Code, 1908, particularly concerning Section 75 and Order XXVI Rule 9. The Bench of Justice N.J. Jamadar upheld the appointment of a Court Commissioner at the very inception of a civil suit involving allegations of land encroachment and a boundary dispute. The Court reiterated that the role of the Court Commissioner is not restricted to elucidating evidence already adduced, but can extend to elucidating the matter in controversy, which includes assisting the Court to understand and resolve factual disputes such as land demarcation and boundary issues even before the trial begins. This case stemmed from a dispute where the plaintiff, having acquired land from various vendors, found that the defendant had allegedly encroached upon his land. Consequently, the plaintiff filed a civil suit seeking a decree for removal of the encroachment and possession of the said portion. Crucially, along with the institution of the suit, the plaintiff filed an application under Order XXVI Rule 9 CPC for the appointment of a cadestral surveyor as Court Commissioner to conduct a joint measurement of the land and ascertain the boundaries. The Civil Judge, upon hearing the application, allowed it, emphasizing that such a measurement and report would aid in determining the core issues in controversy. The defendant challenged this order through the present writ petition, arguing that the appointment of a Court Commissioner before even the framing of issues or commencement of evidence was erroneous and contrary to law.

Arguments:

The petitioner’s contention was primarily that such a premature appointment amounted to pre-judging the suit and circumvented the natural order of trial. However, the respondent-plaintiff countered that where there are clear and specific allegations of encroachment, the requirement of determining factual aspects such as boundaries and extent of land is critical. It was asserted that the appointment of a Court Commissioner in such circumstances is not only appropriate but necessary for aiding the Court in understanding and resolving the dispute. Justice Jamadar, in examining the scope of Section 75 and Order XXVI Rule 9 of the CPC, highlighted that there exists no statutory embargo on the timing of such appointment. He held that the language of Order XXVI Rule 9 confers upon the Court the power to appoint a commissioner to “elucidate the matter in controversy,” and this cannot be narrowly construed to mean only after evidence has been recorded. Drawing upon precedent, notably the decision of the Supreme Court in Haryana Waqf Board v. Shanti Sarup and Ors. [(2008) 8 SCC 671], the High Court noted that in cases of boundary disputes and allegations of encroachment, the Court is entitled to appoint a commissioner to measure the land and ascertain physical facts necessary to decide the controversy.

Judgement:

Justice Jamadar further emphasised that to impose a blanket restriction barring such appointments before the trial stage would unnecessarily tie the hands of the Court and obstruct the process of effective adjudication. He clarified that elucidation of the controversy is a broader concept than merely reviewing evidence. The Court noted that the purpose behind Order XXVI Rule 9 is to assist the adjudicating authority in clarifying complex factual matrices, particularly in suits involving physical inspection, land boundaries, or measurements. Therefore, the Commissioner’s role in conducting measurements is an extension of the judicial process aimed at arriving at a just conclusion. The Court dismissed the petition, affirming the Civil Judge’s discretion to appoint the Court Commissioner at the preliminary stage. In the concluding portion of the judgment, the High Court stated that in suits where encroachment and land demarcation are central to the dispute, early appointment of a Commissioner can facilitate prompt and fair adjudication. The Court emphasised that judicial discretion under Section 75 CPC and Order XXVI Rule 9 CPC must be exercised pragmatically, keeping in mind the object of securing the ends of justice rather than adhering to rigid procedural technicalities. Accordingly, no interference with the impugned order was warranted.