Appointment of a local commissioner is one of the power of the court to carry out local investigations, witness examinations, account adjustments, property sales, and ministerial acts.
Section 75 to 78 deal with the powers of the court to issue commissions and detailed provisions have been made in Order 26 of the Code of Civil Procedure. The power of the court to issue commission is discretionary and can be exercised by the court for doing full and complete justice between the parties. It can be exercised by the court either on an application by a party to the suit or of its own motion(suo motu).
The Court may issue a commission for any of the following purpose:
(a) To examine witnesses(Section 76-78); Order 26 Rules 1-8
(b) To make local investigation: Rules 9 and 10
(c) To adjust accounts: Rules 11 and 12
(d) To make partition: Rules 13 and 14
(e) To hold investigation: Rule 10 A
(f) To sell property: Rule 10 C
(g) To perform ministerial act: Rule 10 B
The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can be had only on the spot. Such evidence enables the court to properly and correctly understand and assess the evidence on record and clarify any point which is left doubtful. It is also helps the court in deciding the questions in controversy pending before it, e.g., whether the suit premises is really occupied by the tenant or by strangers.
Under Order 26, Rule 9 of Code of Civil Procedure, the court may, in any suit, issue a commission to such person as it thinks fit for directing him to make local investigation and to report for the purpose of (a) elucidating any matter in dispute, or (b) ascertaining the market value of any property or the amount of mesne profits or damages or annual nets profits. Such a person is called the Commissioner. The commission can be issue ex parte or in the presence of both the parties.
Draft 1
IN THE HON’BLE COURT OF …………………………………..…………LD. SCJ, DWARKA COURTS, NEW DELHI
CS NO- …………./2022
IN THE MATTER OF:-
AJIT SINGH …PLAINTIFF
VERSUS
DDA & ORS. …DEFENDANTS
APPLICATION ON BEHALF OF PLAINTIFF UNDER ORDER 26 RULE 9 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE FOR APPOINTMENT OF LOCAL COMMISSIONER
MOST RESPECTFULLY SHOWETH:
- That the present matter is pending adjudication before this Hon’ble Court and is now fixed for ……/12/2022.
- That the plaintiff is a senior citizen aged about 85 years and is almost bedridden and could not appear before this Hon’ble Court to give his evidence.
- That the plaintiff is seeking appointment of Local Commissioner to record his evidence from his house.
- That the plaintiff is ready to pay the fee of the Local Commissioner and any other incidental expenses to felicitate the cross examination of the plaintiff.
- That no prejudice shall cause to the Defendant in appointing the local commissioner or in any eventuality if this Hon’ble court is of the opinion that evidence cannot be recorded through Local Commissioner, then the same be allowed to be recorder through V.C.
PRAYER
- It is therefore, most humbly and respectfully prayed that this Hon’ble court may kindly allow the present application and appoint a Local Commissioner to record Plaintiff Evidence.
- Any other and/or further order as deemed fit and proper in the facts and circumstances of the present suit/application in favour of the plaintiff.
PLACE:-
DATED:- APPLICANT/PLAINTIFF
THROUGH
COUNSEL
IN THE HON’BLE COURT OF …………………………………..…………LD. SCJ, DWARKA COURTS, NEW DELHI
CS NO- …………./2022
IN THE MATTER OF:-
AJIT SINGH …PLAINTIFF
VERSUS
DDA & ORS. …DEFENDANTS
AFFIDAVIT
I, …………. S/O ……………., R/O ……………………………………………, aged about ……. years, do hereby solemnly affirm and declare as under:
- That the deponent is the plaintiff in the above case and well conversant with the facts and circumstances of the case, as such, competent to swear the present affidavit.
- That the accompanying application has been drafted by my counsel under my instructions, contents of which are true and correct to the best of my knowledge. The same has been read over to me in my vernacular.
- That the contents of the said application may be read as part and parcel of this affidavit and the same are not being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION:
Verified at …………………….. on this …….day of …….., 2022 that the contents of my above affidavit are true and correct to my knowledge no part of it is false and nothing material has been concealed therefrom.
DEPONENT
Draft 2
IN THE COURT OF SENIOR SUB-JUDGE, DELHI
Application no…………..of 20………………….
Civil Suit No………..of…………..20……………..
Sh………………………. ……….Plaintiff/Applicant
Versus
Sh…………………….. ……….Defendant/Opponent
APPLICATION UNDER ORDER 26, RULE 9, AND ORDER 39, READ WITH SECTION 151, C.P.C. 1908 FOR APPOINTMENT OF LOCAL/COURT COMMISSIONER
Sir,
The Plaintiff respectfully submits as under:
1. That the plaintiff has filed the above-noted suit for possession. Along with the plaint, the plaintiff has also moved an application under Order 39 Rules 1 and 2 and Section 151 C.P.C. The ……..same may be read as part of this application.
2. That the defendant who is in possession of the disputed premises is trying to defeat and delay the claim of the plaintiff. The defendant is trying to part with the possession of the premises in dispute.
3. That to know the factual position and to defeat the false defence, it is necessary that the a Local Commissioner may be appointed to go to the spot and report regarding the possession of the disputed premises.
4. It is therefore most humbly prays:-
(a) That a court/local commissioner be appointed with directions to visit the spot and report as to who is in possession of the disputed premises shown in blue in the plan annexed with the plaint forming part of property No…….
(b) Pass any other just an equitable order as deemed fit in the interest of justice.
Plaintiff
Through
Sd/- (Advocate)
Place:
Date:
Affidavit
IN THE COURT OF SENIOR SUB-JUDGE, DELHI
Application no…………..of 20………………….
Civil Suit No………..of…………..20……………..
Sh………………………. ……….Plaintiff/Applicant
Versus
Sh…………………….. ……….Defendant/Opponent
AFFIDAVIT
I, …………. S/O ……………., R/O ……………………………………………, aged about ……. years, do hereby solemnly affirm and declare as under:
- That the deponent is the plaintiff in the above case and well conversant with the facts and circumstances of the case, as such, competent to swear the present affidavit.
- That the accompanying application has been drafted by my counsel under my instructions, contents of which are true and correct to the best of my knowledge. The same has been read over to me in my vernacular.
- That the contents of the said application may be read as part and parcel of this affidavit and the same are not being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION:
Verified at …………………….. on this …….day of …….., 2022 that the contents of my above affidavit are true and correct to my knowledge no part of it is false and nothing material has been concealed therefrom.
DEPONENT