Case Note & Summary
The Bombay High Court at Aurangabad addressed the issue of whether a Court Commissioner for measurement of land under Section 75 read with Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) can be appointed before the commencement of trial. The petitioners, who were original defendants in a suit, challenged an order appointing a Court Commissioner for measurement of the suit property before trial. The Court examined the provisions of Section 75 and Order 26 Rule 9 CPC, which empower the court to issue a commission for local investigation if it deems such investigation requisite or proper for elucidating any matter in dispute. The Court noted that there was a divergence of views among various decisions of the same court on this issue. After analyzing the statutory provisions and case law, the Court held that the power to appoint a Commissioner is not dependent on the commencement of trial or the adducing of evidence. The court can appoint a Commissioner at any stage of the suit if it is satisfied that a local investigation is necessary for the just adjudication of the dispute. However, the Court emphasized that such appointment is discretionary and must be exercised judiciously, not as a routine matter. The court must record reasons for appointing a Commissioner before trial. The Commissioner's report is not binding on the court and is only a piece of evidence. The Court dismissed the writ petition, upholding the trial court's order appointing the Commissioner, but clarified that the Commissioner's report would be subject to scrutiny during trial.
Headnote
A) Civil Procedure - Court Commissioner - Local Investigation - Section 75 r/w Order 26 Rule 9 CPC - Pre-trial Appointment - The issue was whether a Court Commissioner for measurement of land can be appointed before trial commences. The Court held that the power to appoint a Commissioner is not dependent on the commencement of trial or adducing of evidence; the court can appoint a Commissioner at any stage if it deems a local investigation requisite or proper for elucidating any matter in dispute. The appointment is discretionary and must be exercised judiciously, not as a routine matter. (Paras 2-4) B) Civil Procedure - Court Commissioner - Local Investigation - Section 75 r/w Order 26 Rule 9 CPC - Discretion of Court - The Court clarified that the appointment of a Commissioner is not a matter of right but is within the discretion of the court. The discretion must be exercised based on the facts and circumstances of each case, and the court must record reasons for appointing a Commissioner before trial. The Commissioner's report is not binding on the court and is only a piece of evidence. (Paras 4-5)
Issue of Consideration
Whether a Court Commissioner for measurement of land under Section 75 r/w Order 26 Rule 9 of the Code of Civil Procedure, 1908 can be appointed even before a trial in the suit commences or whether such an appointment can be made only after adducing of evidence by both the parties.
Final Decision
The writ petition is dismissed. The order appointing the Court Commissioner is upheld. The Court held that the appointment of a Commissioner under Section 75 r/w Order 26 Rule 9 CPC is not dependent on the commencement of trial or adducing of evidence. The court can appoint a Commissioner at any stage if it deems a local investigation requisite or proper. However, the appointment is discretionary and must be exercised judiciously with reasons recorded.
Law Points
- Court Commissioner
- Local Investigation
- Section 75 CPC
- Order 26 Rule 9 CPC
- Pre-trial appointment
- Discretion of court
- Elucidation of dispute
