Case Note & Summary
The petitioner, original plaintiff, filed a suit for injunction against respondent No. 1 (defendant No. 1) seeking to restrain him from encroaching upon a common road in a colony and for removal of unauthorized construction. The Municipal Council was also impleaded as defendant No. 2. The defendant No. 1 filed a counter-claim alleging encroachment by the plaintiff and sought measurement of Plot Nos. 23 and 24 and removal of encroachment. During the pendency of the plaintiff's application for temporary injunction, the defendant No. 1 filed an application dated 03 March 2021 for appointment of a Court Commissioner for measurement of the plots, alleging that the plaintiff had encroached upon the road and that the Municipal Council was attempting to construct a road on defendant No. 1's plot. The plaintiff opposed the application. The trial court allowed the application by order dated 12 August 2022, directing the Deputy Superintendent of Land Records to measure the plots, fix boundary marks, and verify encroachment over the 30-feet road. The plaintiff challenged this order in the High Court. The High Court held that the appointment of a Commissioner during the pendency of the temporary injunction application was impermissible as it would effectively decide the suit without trial. The court emphasized that a Commissioner under Order 26 Rule 9 CPC cannot be appointed to collect evidence for a party, and the defendant's application was essentially to prove his counter-claim. The High Court set aside the impugned order and directed the trial court to decide the temporary injunction application expeditiously, preferably within three months.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Impermissibility during pendency of injunction application - The trial court appointed a Commissioner to measure plots and fix boundaries while the plaintiff's temporary injunction application was pending. The High Court held that such appointment during the pendency of the injunction application is impermissible as it would effectively decide the suit without trial. The Commissioner cannot be appointed to collect evidence for a party. (Paras 4-6) B) Civil Procedure - Court Commissioner - Scope of Order 26 Rule 9 CPC - Not for collecting evidence - The purpose of a Commissioner under Order 26 Rule 9 CPC is to assist the court in elucidating matters in dispute, not to collect evidence for a party. The application for appointment of Commissioner was filed by the defendant to prove his counter-claim, which is not permissible. (Paras 5-6) C) Civil Procedure - Temporary Injunction - Pendency of application - Appointment of Commissioner - The trial court's order appointing a Commissioner during the pendency of the temporary injunction application was set aside as it would pre-judge the issues in the suit. The High Court directed the trial court to decide the temporary injunction application expeditiously. (Paras 6-7)
Issue of Consideration
Whether the trial court was justified in appointing a Court Commissioner for measurement of property during the pendency of an application for temporary injunction, and whether such appointment amounts to deciding the suit without trial.
Final Decision
The High Court allowed the writ petition, set aside the order dated 12 August 2022 passed by the 2nd Joint Civil Judge Senior Division, Nandurbar, and directed the trial court to decide the temporary injunction application expeditiously, preferably within three months.
Law Points
- Appointment of court commissioner during pendency of temporary injunction application is impermissible
- Commissioner cannot be appointed to collect evidence for a party
- Order 26 Rule 9 CPC cannot be used to collect evidence for a party
- Commissioner's report cannot be used to decide suit without trial
