Case Note & Summary
The petitioners, who are the plaintiffs in a suit for partition and separate possession, filed an application (IA No.13) under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) seeking appointment of a Commissioner to conduct a local investigation of the suit property. The trial court, by order dated 11.11.2019, dismissed the application solely on the ground that it was filed at a belated stage, without examining the merits or the necessity of the investigation. Aggrieved, the petitioners approached the High Court under Article 227 of the Constitution of India. The High Court examined the impugned order and found that the trial court had not applied its judicial mind to the facts of the case. It reiterated that while the appointment of a Commissioner is not a matter of right, the court must exercise its discretion judicially and consider whether such an investigation is necessary for the just adjudication of the dispute. The High Court set aside the impugned order and remanded the matter back to the trial court for fresh consideration of IA No.13 on its merits, directing that the application be decided afresh in accordance with law, after hearing both parties. The writ petition was allowed.
Headnote
A) Civil Procedure Code - Appointment of Commissioner - Order 26 Rule 9 CPC - Local Investigation - The trial court dismissed the application for appointment of a Commissioner without considering the merits, merely stating that the application was filed at a belated stage. The High Court held that the application ought to have been considered on its merits and that the trial court's order was unsustainable. (Paras 1-10)
B) Civil Procedure Code - Judicial Discretion - Order 26 Rule 9 CPC - The High Court observed that the appointment of a Commissioner is not a matter of right but must be decided based on judicial principles. The trial court's failure to apply its mind to the facts and circumstances of the case warranted interference under Article 227 of the Constitution of India. (Paras 1-10)
Issue of Consideration
Whether the trial court was justified in dismissing the application for appointment of a Commissioner for local investigation without considering the merits of the application.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 11.11.2019, and remanded the matter to the trial court for fresh consideration of IA No.13 on its merits, in accordance with law, after hearing both parties.
Law Points
- Order 26 Rule 9 CPC
- Appointment of Commissioner
- Local Investigation
- Judicial Discretion
- Remand
Case Details
2025 LawText (KAR) (07) 11
W.P. No.51712/2019 (GM-CPC)
Sri. H.N. Shashidhara, Sr. Counsel for Sri. H.S. Suhas for Petitioners; Sri. Ramachandra R. Naik for R1 to R7, R10 & R11; Sri. M.B. Chandrachooda for R8, R9 (a to d)
Sri. Balakrishna K.P. and Sri. Pradeep Kumar
Sri. K.P. Puttaraju and Others
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging an order of the trial court dismissing an application for appointment of a Commissioner for local investigation.
Remedy Sought
Petitioners sought setting aside of the trial court's order dated 11.11.2019 dismissing IA No.13 in O.S. No.13/2017 and a direction to consider the application afresh.
Filing Reason
The trial court dismissed the application for appointment of a Commissioner solely on the ground of belated filing without considering its merits.
Previous Decisions
The trial court (Principal Senior Civil Judge) dismissed IA No.13 on 11.11.2019.
Issues
Whether the trial court was justified in dismissing the application for appointment of a Commissioner for local investigation without considering the merits of the application.
Submissions/Arguments
Petitioners argued that the trial court erred in dismissing the application without considering the necessity of local investigation for just adjudication of the suit.
Respondents opposed the application, but the High Court noted that the trial court did not record any reasons on merits.
Ratio Decidendi
The appointment of a Commissioner under Order 26 Rule 9 CPC is not a matter of right but must be decided based on judicial principles. The trial court must apply its mind to the facts and circumstances and consider whether local investigation is necessary for the just adjudication of the dispute. Dismissal of such application without considering merits is unsustainable.
Judgment Excerpts
The trial court has dismissed the application solely on the ground that the application is filed at a belated stage without considering the merits of the application.
The appointment of a Commissioner is not a matter of right but the court has to exercise its discretion judicially and consider whether such investigation is necessary for the just adjudication of the dispute.
Procedural History
The petitioners filed O.S. No.13/2017 for partition and separate possession before the Principal Senior Civil Judge. They filed IA No.13 under Order 26 Rule 9 CPC for appointment of a Commissioner. The trial court dismissed IA No.13 on 11.11.2019. The petitioners then filed the present writ petition under Article 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 26 Rule 9
- Constitution of India: Article 227
