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Judgment
Respondent filed Original Suit No. 81 of 2022, which was decreed against the petitioners. Petitioners filed Appeal against the judgment and decree passed by learned Civil Judge (Senior Division), Bageshwar, which is pending.
Before the appellate court, petitioners moved an application under Order 26 Rule 9 CPC for appointment of commissioner. The said application was rejected by learned District Judge, vide order dated 30.07.2026. Thus feeling aggrieved, petitioners have approached this Court challenging order dated 30.07.2026.
Perusal of the impugned order reveals that on the prayer of the petitioners, learned Trial Court appointed a commissioner, who had submitted his report and after cross-examining the commissioner, petitioners had stated before the trial Court on 11.02.2025 that no further evidence is to be adduced by them. Learned Appellate Court thus held that the request for issuing commission under Order 26 Rule 9 CPC, made by petitioners does not appear to be justified.
This Court do not find any reason to interfere with the impugned order.
The power to appoint a commissioner for local investigation is primarily found under Order 26 Rule 9 and 10 CPC; however, this power intersects with Order 41 Rule 27 CPC during an appeal. This is because any report submitted by a commissioner at the appellate stage is treated as additional evidence. Although, appellate courts possess powers similar to trial courts to ensure effective adjudication, however, this is a discretionary power, not a routine right.
An advocate commissioner is appointed to elucidate existing disputes and not for creating new evidence. The Court must be satisfied that the commission report is necessary for proper adjudication and must record the reasons for this satisfaction.
In the present case, learned District Judge has considered the request made by petitioners and has given valid reasons for not allowing such request. Since commissioner was appointed on petitioners’ request and commissioner’s report is available on record, therefore, learned District Judge rightly rejected the prayer made by petitioners for appointing commissioner at the appellate stage.
The writ petition is, accordingly, dismissed.