Case Note & Summary
The petitioner, Yasin Gulab Shikalkar, filed a Regular Civil Suit No. 62 of 2010 for permanent injunction and recovery of possession of encroached portion of land against the respondents. During the suit, the petitioner filed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Court Commissioner for measurement of lands and fixing boundaries. The Trial Court allowed the application on 1 August 2011 and appointed the Taluka Inspector of Land Record (TILR) as Commissioner. The TILR conducted measurement, submitted a report with a map, and was examined as a witness in the Trial Court. The report was prima facie in favor of the petitioner. However, during arguments, the validity of the TILR's report was questioned. The Trial Court dismissed the suit. The petitioner appealed to the District Court, Solapur. During the pendency of the appeal, the petitioner filed an application for appointment of a fresh Court Commissioner for measurement of lands. The District Judge rejected the application by order dated 15 December 2021. The petitioner challenged this order in the present writ petition. The High Court held that once a commissioner has been appointed, submitted a report, and has been examined as a witness, the court cannot appoint another commissioner for the same purpose. The court noted that the petitioner had the opportunity to cross-examine the TILR and could have sought further investigation if needed. The High Court found no error in the District Judge's order and dismissed the writ petition.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Rejection of application for fresh commission - The petitioner sought appointment of a Court Commissioner for measurement of lands during the pendency of an appeal. The trial court had earlier appointed a Taluka Inspector of Land Record (TILR) as Commissioner, who submitted a report and was examined as a witness. The District Judge rejected the application. Held that once a commissioner has been appointed, submitted a report, and has been examined as a witness, the court cannot appoint another commissioner for the same purpose, as it would amount to reviewing the earlier order or allowing a second commission without proper grounds. (Paras 2-6)
Issue of Consideration
Whether the District Judge erred in rejecting the petitioner's application for appointment of a Court Commissioner for measurement of lands during the pendency of the appeal, when a previous commissioner had already been appointed, submitted a report, and was examined as a witness in the trial court.
Final Decision
The High Court dismissed the writ petition, upholding the order of the District Judge dated 15 December 2021 rejecting the application for appointment of a Court Commissioner.
Law Points
- Order 26 Rule 9 CPC
- Appointment of Court Commissioner
- Rejection of application for fresh commission after earlier commissioner examined as witness
- No power to appoint commissioner after evidence closed
