Source: Jammu & Kashmir High Court 

Why in News? 

Justice Rajnesh Oswal has held that the court noted that a Commissioner under Order XXXIX Rule 7 Code of Civil Procedure, 1908 (CPC) is appointed for inspection purposes, while a Commissioner under Order XXVI Rule 9 CPC is meant for investigation to elucidate disputed facts. 

• The Jammu & Kasmir High Court held in the case of Saraj Din v. Liyaqat Ali (2025). 

What was the Background of the Saraj Din v. Liyaqat Ali Case? 

• The case involves a land dispute between two parties: Saraj Din (70 years old) and Liyaqat Ali, both residents of Firdosabad Sunjwan in Jammu District.  
• The dispute centers around a piece of land with Survey No. 356 min, measuring approximately 16 marlas, located in Village Sunjwan. 
• Saraj Din initially filed a suit seeking a permanent prohibitory injunction regarding the land in Survey No. 356 min.  
• Liyaqat Ali had already filed a written statement in response to this suit. 
• Subsequently, Liyaqat Ali filed his own suit for a permanent prohibitory injunction. 
• His suit sought to restrain Saraj Din and his representatives from interfering with his peaceful possession of the land. 
• The land in question has the following dimensions: 
  • North side: 75 feet 
  • South side: 68 feet 
  • West side: 65 feet 
  • East side: 65 feet 
• Both parties are essentially claiming possession of the same piece of land, leading to parallel legal proceedings in the court. 
• Liyaqat Ali filed an application requesting the appointment of a commissioner to conduct a land demarcation (nishan dehi) to clarify the boundaries and possession of the land. 

What were the Court’s Observations? 

• The J & K High Court made several significant observations regarding the case: 
  • The court noted that under Article 227 of the Constitution, orders of civil courts can only be examined in exceptional cases where there is a manifest miscarriage of justice. 
  • High Courts can interfere when there is:  
    • Patent perversity in orders. 
    • Gross and manifest failure of justice. 
    • Violation of basic principles of natural justice. 
  • The court distinguished between two types of Commissioner appointments:  
    • Order XXXIX Rule 7 CPC: For property inspection. 
    • Order XXVI Rule 9 CPC: For local investigation to elucidate matters in dispute. 
  • The trial court had prematurely appointed a commissioner when:  
    • Evidence had not yet been led by parties. 
    • The court itself had concluded both suits could be decided by common evidence. 
    • There was no specific matter requiring elucidation. 
  • A Commissioner can only be appointed when the court cannot reach a definitive conclusion based on existing evidence. 
  • The term "investigation" in Order XXVI Rule 9 CPC is broader than "inspection." 
  • Commissioner appointment should occur after issues are framed, not before evidence is presented. 
  • The High Court rules that the trial court committed a jurisdictional error by appointing a Commissioner under Order XXVI Rule 9 CPC at this stage of the proceedings. 

What are Commissions? 

About 

• Commission is an instruction or role given by the Court to a person to act on behalf of the Court. 
• The court authorizes the person so appointed to do everything that the Court requires to do for the accomplishment of justice. 
• A person so appointed is known as a Court commissioner. 
• Courts power to issue commission is discretionary, it can be exhausted by the court either on application by a party to the suit or on its own motion. 

Appointment as a Commissioner 

• Generally, there is a panel of commissioners which is formed by a High Court in which advocates competent to carry out the commission issued by the Court, are selected. 
• The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission. 

Power of Court to Issue Commissions 

• Section 75 of CPC deals with the power to court to issue commissions. It states that- 
• Subject to such conditions and limitations as may be prescribed; the Court may issue a commission— 
  • to examine any person; 
  • to make a local investigation; 
  • to examine or adjust accounts; or 
  • to make a partition; 
  • to hold a scientific, technical, or expert investigation; 
  • to conduct sale of property which is subject to speedy and natural decay, and which is in the custody of the Court pending the determination of the suit; 
  • to perform any ministerial act. 

What is Order XXVI of Rule 9 of CPC? 

• Commission for Local Investigation 
  • As per Rule 9 of Order XXVI, the court can issue commission for local investigation. 
  • The court can issue commission, if it considers proper at any stage of the suit, for the following purposes: 
    • For explanation in any disputed issue. 
    • For determination of the market value of any property. 
    • For determination of mesne profits, damages, annual net profits etc. 
    • To issue such commission depends upon the discretion of the court.