Case Note & Summary
The petitioner, Shaikh Isak s/o Shaikh Amir, filed a writ petition challenging an order dated 06.03.2010 passed by the Civil Judge, J.D., Parli Vaijnath, in R.C.S. No. 180 of 2007. The suit was filed by the respondent No.2, Raosaheb s/o Namdeo Rathod, seeking a permanent injunction against the petitioner in respect of land bearing Gat No. 83, including a disputed area of 37 R. The respondent/plaintiff filed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Cadestral Surveyor or T.I.L.R. as a Court Commissioner to measure the land. The Civil Judge allowed the application, leading to the present petition. The High Court observed that the suit was at a preliminary stage, issues had not been framed, and no evidence had been recorded. The court held that the appointment of a Commissioner at such a stage was premature and would amount to collecting evidence for the plaintiff, which is not the purpose of Order 26 Rule 9 CPC. The provision is intended to assist the court in arriving at a just decision, not to enable a party to gather evidence. The court set aside the impugned order and directed the trial court to proceed with the suit in accordance with law, without being influenced by the observations made in the judgment. The writ petition was allowed, and rule was made absolute.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Premature Appointment - Order 26 Rule 9, Code of Civil Procedure, 1908 - The Civil Judge allowed an application for appointment of a Cadestral Surveyor as Court Commissioner to measure the disputed land in a suit for permanent injunction, before framing issues and recording evidence. The High Court held that such appointment at a preliminary stage is premature and amounts to collecting evidence for a party, which is not permissible. The court set aside the order and directed the trial court to proceed with the suit in accordance with law. (Paras 2-5) B) Civil Procedure - Local Investigation - Order 26 Rule 9, Code of Civil Procedure, 1908 - The provision for appointment of a Commissioner for local investigation is meant to help the court in arriving at a just decision, not to enable a party to collect evidence. The court must first frame issues and record evidence before considering the necessity of a local investigation. (Paras 4-5)
Issue of Consideration
Whether the Civil Judge was justified in allowing the application for appointment of a Court Commissioner to measure the disputed land at the preliminary stage of the suit, before framing issues and recording evidence.
Final Decision
The High Court allowed the writ petition, set aside the order dated 06.03.2010 passed by the Civil Judge, J.D., Parli Vaijnath, and directed the trial court to proceed with the suit in accordance with law, without being influenced by the observations made in the judgment. Rule made absolute.
Law Points
- Appointment of court commissioner at preliminary stage without framing issues and recording evidence is premature
- Commissioner cannot be appointed to collect evidence for a party
- Order 26 Rule 9 CPC allows appointment only when local investigation is requisite or proper
- Suit for injunction based on title requires trial on merits before measurement
