Case Note & Summary
The present Writ Petition under Article 227 of the Constitution of India was filed by the Petitioner, who is the original Defendant No.1 in Regular Civil Suit No.58 of 2013 pending before the learned Civil Judge, Junior Division, Khandala. The Petitioner challenged the order dated 22/10/2018 passed by the Trial Court below Exhibit-36, which allowed the application of the original Plaintiff (Respondent No.1) for appointment of a Court Commissioner. The application stated that a lady advocate had been earlier appointed as Court Commissioner but had not done the work properly, and both parties had filed objections to her report. The application sought appointment of TILR as a new Court Commissioner, or alternatively, cancellation of the earlier order and appointment of a new Commissioner. The Trial Court allowed the application and appointed TILR as Court Commissioner. During the pendency of the Writ Petition, the newly appointed Commissioner carried out the commission work on 27/05/2019 and submitted a report. This Court by order dated 06/09/2019 requested the Trial Court to defer the hearing of the suit, and by order dated 04/10/2019 directed the Trial Court not to act upon the Commissioner's report. The Petitioner's counsel argued that the earlier Commissioner's report was not rejected by the Trial Court with cogent reasons, and unless the earlier report is rejected, the Court has no power to appoint another Commissioner. She relied on the Madras High Court judgment in R. Viswanathan v. P. Shanmugham and anr., 1985 1 MLJ 254, and a judgment of this Court in Sanjay Kishan Kaul v. State of Maharashtra (not fully cited). The High Court, after hearing both sides, dismissed the Writ Petition, holding that there is no legal requirement that the earlier Commissioner's report must be rejected before appointing a new Commissioner. The Trial Court has discretion to appoint a fresh Commissioner if it is necessary for the just adjudication of the suit. The Court noted that the Trial Court had not yet considered the objections to the earlier report, and the appointment of a new Commissioner does not require prior rejection. The impugned order was upheld, and the Writ Petition was dismissed.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Power to appoint fresh Commissioner - The Trial Court allowed an application for appointment of TILR as Court Commissioner despite objections to the earlier lady advocate Commissioner's report. The Petitioner argued that the earlier report must be rejected with reasons before a new Commissioner can be appointed. The High Court held that there is no such legal requirement and the Trial Court has discretion to appoint a fresh Commissioner if necessary for the just adjudication of the suit. (Paras 1-4) B) Civil Procedure - Objections to Commissioner's Report - Order 26 Rule 9 CPC - Consideration of objections - The Petitioner contended that the earlier Commissioner's report was not rejected by the Trial Court with cogent reasons. The High Court observed that the Trial Court had not yet considered the objections to the earlier report and that the appointment of a new Commissioner does not require prior rejection of the earlier report. (Paras 2-4)
Issue of Consideration
Whether the Trial Court had the power to appoint a new Court Commissioner without first rejecting the earlier Commissioner's report by giving cogent reasons.
Final Decision
The High Court dismissed the Writ Petition, holding that there is no legal requirement that the earlier Commissioner's report must be rejected before appointing a new Commissioner. The Trial Court has discretion to appoint a fresh Commissioner if necessary for just adjudication. The impugned order was upheld.
Law Points
- Appointment of Court Commissioner
- Power of Civil Court to appoint Commissioner
- Order 26 Rule 9 CPC
- Objections to Commissioner's report
- Rejection of earlier report requirement
