Case Note & Summary
The petitioner, Kavita Pramod Firke, filed a suit for general partition in the trial court. During the suit, she obtained a temporary injunction restraining respondent No. 9, Sunil Ratanlal Mahajan (Mali), from changing or altering the structure standing on the suit property. Alleging that respondent No. 9 was breaching the injunction, the petitioner filed an application (Exhibit 110) under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC) seeking appointment of a Court Commissioner to inspect the property and record the alleged change in structure. The trial court rejected the application, leading the petitioner to file the present writ petition before the Bombay High Court. The High Court, after hearing both sides, set aside the trial court's order and allowed the application. The court reasoned that the appointment of a Commissioner is an innocuous step to bring on record facts that cannot otherwise be proved, especially when there is an allegation of breach of injunction. The court emphasized that the purpose of judicial power is to reveal the truth, which is the foundation of justice, and that the Commissioner's report would assist in just adjudication and avoid multiplicity of proceedings. The court also noted that the petitioner had already initiated proceedings for breach of injunction under Order XXXIX Rule 2A CPC, but the appointment of a Commissioner would not prejudice those proceedings. The writ petition was allowed, and the trial court was directed to appoint a Court Commissioner as prayed.
Headnote
A) Civil Procedure - Court Commissioner - Order XXVI Rule 9 CPC - Local Investigation - The court held that appointment of a Court Commissioner for local investigation is permissible even during pendency of a suit to ascertain facts that cannot be otherwise brought on record, especially when there is an allegation of breach of injunction. The trial court's rejection was set aside and the application was allowed. (Paras 3-7) B) Civil Procedure - Breach of Injunction - Order XXXIX Rule 2A CPC - The court noted that the petitioner had already initiated proceedings for breach of injunction, but the appointment of a Commissioner would not prejudice those proceedings and would help in revealing the truth. (Para 6) C) Civil Procedure - Multiplicity of Proceedings - The court emphasized that appointment of a Commissioner would avoid multiplicity of proceedings and assist in just adjudication. (Para 7)
Issue of Consideration
Whether the trial court was justified in rejecting the application for appointment of a Court Commissioner under Order XXVI Rule 9 CPC to ascertain the alleged change in structure of the suit property, despite the existence of a temporary injunction restraining such change.
Final Decision
The writ petition is allowed. The impugned order passed by the trial court rejecting the application (Exhibit 110) is quashed and set aside. The trial court is directed to appoint a Court Commissioner under Order XXVI Rule 9 CPC as prayed.
Law Points
- Order XXVI Rule 9 CPC
- Court Commissioner
- Local Investigation
- Breach of Injunction
- Partition Suit
- Revealing Truth
- Multiplicity of Proceedings
