Case Note & Summary
The petitioners, original plaintiffs, filed a suit for declaration, possession of encroached portion and mesne profits in respect of 8R of land out of Survey No.78 (gut no.369) at Hatta, Taluka Basmath. They claimed that they sold 1H and 40R to respondent no.1, which was converted into plots through a sanctioned layout and distributed to members of Bhagyanagar Grah Sanstha. The dispute pertains to 8R of land allegedly not sold and encroached by defendants. The trial court dismissed the suit on 17.07.2015. The petitioners preferred appeal RCA No.47/2015. During the appeal, they filed application Exhibit-89 under Order 26 Rule 9 CPC for appointment of a Commissioner to inspect the suit property and submit a report. The appellate court rejected the application on 03.08.2022. The petitioners challenged this order in the High Court. The High Court held that Order 26 Rule 9 CPC does not bar appointment of Commissioner at the appellate stage. The appellate court has discretion to appoint a Commissioner if necessary for just adjudication. The High Court set aside the impugned order and allowed the application, directing the appellate court to appoint a Commissioner as prayed.
Headnote
A) Civil Procedure - Appointment of Commissioner at Appellate Stage - Order 26 Rule 9 CPC - The appellate court has discretion to appoint a Commissioner under Order 26 Rule 9 CPC even at the appellate stage if it is necessary for just adjudication of the dispute. The trial court had dismissed the suit for declaration, possession and mesne profits. The appellate court rejected the application for appointment of Commissioner. The High Court set aside the order and allowed the application, holding that the appellate court can appoint a Commissioner to elucidate matters in dispute. (Paras 7-10)
Issue of Consideration
Whether the appellate court can appoint a Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 at the appellate stage for the purpose of elucidating matters in dispute.
Final Decision
The High Court allowed the writ petition, set aside the order dated 03.08.2022 passed by the learned Adhoc District Judge 1, Basmathnagar in RCA No.47/2015, and directed the appellate court to appoint a Commissioner as prayed in Exhibit-89.
Law Points
- Order 26 Rule 9 CPC
- appointment of Commissioner at appellate stage
- just adjudication
- discretion of appellate court
