Case Note & Summary
The petitioners, original plaintiffs, filed a writ petition challenging an order dated 7/1/2010 passed by the Joint Civil Judge, Junior Division, Ahmednagar, which allowed the respondent's application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Court Commissioner. The commissioner was appointed to visit the suit property and submit a report regarding possession. The petitioners contended that a commissioner cannot be appointed to collect evidence. The court, relying on precedents including Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare (2001 (2) Mh.L.J. 959) and Efigenio Dias v. Malaquias D'Costa (2000 (2) Mh.L.J. 209), held that the appointment of a commissioner to collect evidence regarding possession was impermissible. The court allowed the petition, quashed the impugned order, and directed the trial court to decide the suit expeditiously.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order XXVI Rule 9 CPC - Purpose of Commission - The court held that a commissioner cannot be appointed to collect evidence for a party; the purpose of a commission is to elucidate matters in dispute, not to gather evidence. The impugned order appointing a commissioner to report on possession was set aside. (Paras 1-3)
Issue of Consideration
Whether a Court Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 to collect evidence regarding possession of suit property.
Final Decision
The writ petition is allowed. The impugned order dated 7/1/2010 passed by the Joint Civil Judge, Junior Division, Ahmednagar is quashed and set aside. The trial court is directed to decide the suit expeditiously. Rule made absolute accordingly.
Law Points
- Commissioner cannot be appointed to collect evidence
- Order XXVI Rule 9 CPC
- purpose of commission is to elucidate matters in dispute
- not to gather evidence for a party
Case Details
2010 LawText (BOM) (12) 15
WRIT PETITION NO.2407/2010
Shri M.R. Sonawane for Petitioners, Shri Yuvraj Kakade for Respondent
Smt. Nalubai Narayan Shinde, Anil Narayan Shinde, Sanjay Narayan Shinde, Ganesh Narayan Shinde
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Nature of Litigation
Writ petition challenging an order allowing appointment of Court Commissioner under Order XXVI Rule 9 CPC in a suit for possession.
Remedy Sought
Petitioners sought quashing of the order dated 7/1/2010 appointing a commissioner to report on possession.
Filing Reason
The trial court allowed the respondent's application for appointment of a commissioner to collect evidence regarding possession of suit property.
Previous Decisions
The Joint Civil Judge, Junior Division, Ahmednagar passed the impugned order on 7/1/2010 allowing the application under Order XXVI Rule 9 CPC.
Issues
Whether a Court Commissioner can be appointed under Order XXVI Rule 9 CPC to collect evidence regarding possession of suit property.
Submissions/Arguments
Petitioners argued that no commissioner can be appointed to collect evidence, relying on Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare (2001 (2) Mh.L.J. 959), Efigenio Dias v. Malaquias D'Costa (2000 (2) Mh.L.J. 209), and Puttappa v. Ramappa (AIR 1996).
Ratio Decidendi
A commissioner cannot be appointed under Order XXVI Rule 9 CPC to collect evidence for a party; the purpose of a commission is to elucidate matters in dispute, not to gather evidence.
Judgment Excerpts
The learned counsel for the petitioner submitted that no commissioner can be appointed by the Court to collect evidence.
He has relied upon the following cases in support of his contention : [I] Sanjay Namdeo Khandare V/s Sahebrao Kachru Khandare & Ors reported in 2001 (2) Mh.L.J. 959. [II] Efigenio Dias and another V/s Malaquias D'Costa & Ors. reported in 2000 (2) Mh.L.J. 209. [III] Puttappa V/s Ramappa reported in AIR 1996
Procedural History
The respondent filed an application under Order XXVI Rule 9 CPC before the Joint Civil Judge, Junior Division, Ahmednagar, which was allowed on 7/1/2010. The petitioners challenged that order by filing the present writ petition on 9/12/2010.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXVI Rule 9
