Explain the concept of local investigation

Local Investigation Under the Code of Civil Procedure

Civil litigation frequently throws up disputes that cannot be satisfactorily resolved by oral testimony and documents alone. There are contests over boundaries, questions of market value of land, claims of mesne profits, disputes about the actual condition of a building, and a host of other matters where the best evidence lies not in the courtroom but in the field — on the very ground or property that is in controversy. It is to deal with precisely such situations that the Code of Civil Procedure, 1908, has equipped the court with the power to depute a person to visit the site, observe the relevant facts, and report back. This device is called a commission for local investigation, and it forms one of the most practically significant tools in the arsenal of a civil court.

The Statutory Basis: Section 75 and Order XXVI, Rules 9 and 10

The general power to issue commissions is found in Section 75 of the Code, which authorises the court, subject to prescribed conditions and limitations, to issue a commission — among other things — to make a local investigation. This is one of seven species of commissions recognised by the Code, the others being to examine witnesses, examine or adjust accounts, make a partition, conduct scientific or technical investigations, perform ministerial acts, and conduct sales of perishable property. The introduction of commissions for scientific investigation and ministerial acts was made by the Amending Act of 1976, reflecting the recognition that modern litigation increasingly involves technical and expert inquiries that cannot be conveniently conducted before the court.

The specific provision governing local investigations is Order XXVI, Rule 9, which reads that 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,

• ascertaining the market-value of any property,

• ascertaining the amount of any mesne profits or damages, or

• ascertaining the 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.

Where the State Government has made rules as to the persons to whom such commissions shall be issued, the court is bound by those rules. Most States have exercised this power, prescribing panels of advocates and other competent persons from whom court commissioners may be drawn.

The Nature of the Discretion

The word used in Rule 9 is "may" — not "shall." This is a deliberate legislative choice, and it means that the court has a discretion whether to issue a commission. That discretion must be exercised judicially and in response to an actual need in the litigation. Courts have consistently held that an application for appointment of a local commissioner should not be used as a device for collecting evidence that is not otherwise available. In a suit for a bare injunction, for example, the Allahabad High Court has held that the court should discourage the appointment of an advocate commissioner, since in such a suit the scope is limited and the appointment would in effect aid a party in collecting evidence.

The Supreme Court has confirmed that an issue of commission is a matter of judicial discretion, and in Filmistan Pvt. Ltd. v. Bhagwandas (AIR 1971 SC 61), it held that when the discretion is properly exercised, it cannot be interfered with in appeal on grounds such as the expense involved or the difficulty of cross-examining the commissioner.

Who May Be Appointed as Commissioner

The court may issue the commission to such person as it thinks fit. This is a wide power — courts in India have typically appointed practising advocates as commissioners for local investigation, and they are therefore commonly known as Advocate Commissioners. The Delhi High Court has observed that a statement in the commissioner's report touching matters beyond the scope of the order of appointment is not admissible in evidence; the commissioner is strictly confined to the scope of his appointment.

An important observation from the courts is that the Advisory Commissioner is expected to adopt an impartial stand and must behave in a manner that gives no room for any allegation of bias from either litigating party. His role is that of an officer of the court, not an agent of either side. Once he is appointed, he cannot thereafter act in any capacity adverse to either party in the same or connected litigation.

The Procedure of the Commissioner: Order XXVI, Rule 10

Once appointed, the commissioner proceeds under Order XXVI, Rule 10, which sets out a clear three-step procedure.

First, the commissioner shall, after such local inspection as he deems necessary, reduce to writing the evidence taken by him, and return such evidence, together with his report in writing, signed by him, to the court. The reduction of evidence to writing is significant — it ensures that the inspection is not merely an impressionistic exercise but one grounded in recorded observations. The commissioner visits the site, examines such persons as may be necessary, and prepares a written report.

Second, the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record — but, critically, the evidence alone, without the report, shall not be evidence. The evidence of the witnesses examined by the commissioner is admissible only if accompanied by the commissioner's report. This is a safeguard — it ensures that raw depositions before the commissioner are seen in the context of the commissioner's overall findings, and not in isolation.

Third, the court — or, with its permission, any party — may examine the commissioner personally in open court touching any of the matters referred to him, anything mentioned in his report, or the manner in which he has made the investigation. This right to personally examine the commissioner in open court is an important safety valve: it ensures that the parties are not left without a remedy if the commission has been executed improperly or if the report raises questions about the manner of investigation.

The Report as Evidence: Its Weight and Limitations

One of the most contested aspects of local investigation practice concerns the evidentiary weight to be accorded to the commissioner's report. The law is clear that the report is nothing more than a piece of evidence — it has no special sanctity or overriding authority. Like any other piece of evidence, the court is fully competent to rule on the admissibility of the commissioner's report and to assess its weight.

This principle has been applied in important situations. In Lekh Raj v. Muni Lal (AIR 2001 SC 996), the Supreme Court held that where a commissioner is appointed to assess the condition of a building, he can only report the existing condition of the building — he cannot report on who caused the damage or render a finding on questions of liability. His report on matters beyond his mandate is not admissible.

Similarly, the Allahabad High Court has held that the evidentiary value of a commissioner's report depends on the nature of the report and the surrounding circumstances. A report that is vague, self-contradictory, or the product of an irregular inspection may be accorded little weight, and the court is at liberty to call for a supplemental investigation.

The Supreme Court has clarified in Rajbir Kaur v. S. Chokesiri & Co. (AIR 1988 SC 1845) that the power to appoint a commissioner for local investigation is not confined solely to Rule 9 of Order XXVI. It may also be referable to Rule 7 of Order XXXIX, which deals with interim commissions for preservation of the subject matter of a suit. In such cases, an ex parte appointment of a commissioner is permissible where giving prior notice would defeat the very object of the appointment — for instance, to record the state of property before it is altered or destroyed.

Setting Aside the Commissioner's Report

Although Order XXVI, Rule 10 does not expressly provide for the setting aside of a commissioner's report, the court can do so in the exercise of its inherent powers under Section 151 of the Code. If the court finds a commissioner's report to be completely useless or of no assistance — for instance, where the report has been prepared without proper inspection, or where the commissioner has exceeded his mandate — it would be futile to preserve such a report on the court record. The Calcutta High Court in Chinmayee Saha v. Renuka Haider (AIR 2016 Cal 33) held that the court may set aside such a report and appoint a fresh commissioner to discharge the function and give a proper report.

If the report is set aside and a fresh commissioner appointed, the Advisory Commissioner who has been replaced has no right to be heard before his report is set aside, and is also not a person aggrieved by the order appointing another commissioner in his place.

Where the Court Is Dissatisfied: Power to Direct Further Inquiry

Even where a commissioner's report is not set aside, Order XXVI, Rule 10(3) expressly confers on the court the power to direct such further inquiry to be made as it shall think fit where it is, for any reason, dissatisfied with the proceedings of the commissioner. This is a separate, residual supervisory power — a lesser intervention than setting aside. The court may, for example, direct the commissioner to visit the site again, to take evidence from a person he had not examined, or to address a specific question in greater detail.

Significance in Property and Boundary Disputes

Local investigation is most frequently resorted to in suits involving boundary disputes between adjacent landowners, disputes about encroachments, questions of mesne profits, or contests about the condition of demised premises. The Allahabad High Court has observed that where there is a controversy regarding demarcation of land because parties have adjacent plots, a local commissioner ought to have been appointed — it would be an improper exercise of discretion to refuse such an appointment when the parties themselves cannot agree on the boundaries and the court is unable to resolve the question from plans and documents alone.

In a dispute regarding identification of land, if the report of the court commissioner states that the land handed over to the decree-holder is different from the land in respect of which the decree was passed, and that report is not challenged by either party, then the local investigation report assumes great significance and is a relevant piece of evidence on record. The Madras High Court has held that a trial court which simply ignores an unchallenged commissioner's report commits an error, and the finding so arrived at without considering the report is incorrect.

Appellate Court's Power to Issue a Commission

An important practical question is whether the power under Order XXVI, Rule 9 is available to appellate courts, or only to trial courts. The Allahabad High Court settled this in Gajraj v. Ramadhar (AIR 1975 All 406), where it held that the appellate court has the same power to issue a commission for local inspection as a trial court can exercise. Accordingly, where the lower appellate court finds that a clear demarcation of boundaries is necessary for giving a finding on the question of ownership, the appropriate course is not to remand the entire suit under Order XLI, Rule 23 — which would cause substantial delay — but to issue a commission under Order XXVI, Rule 9 and resolve the factual question at the appellate stage itself. This is a sound and economical use of the commission power, consistent with the overarching objective of minimising unnecessary remands.