Case Note & Summary
The present civil revision application was filed by the petitioners (original defendants) challenging the order dated 24-03-2004 passed by the learned Joint Civil Judge, Junior Division, Nilanga, District Latur, below Exhibit 48 in Regular Civil Suit No. 503 of 1995. The suit was filed by the plaintiff for declaration of ownership and perpetual injunction in respect of land bearing Gat No. 42, admeasuring 2 Hectares 12 R, situated at village Kambalga, Tq. Nilanga, Dist. Latur. During the pendency of the suit, the defendants filed an application at Exhibit 48/D under Order 26 Rule 9 of the Code of Civil Procedure, 1908, praying for appointment of a Court Commissioner to inspect the suit property and submit a report. The trial court rejected the application on the ground that the application was filed at a belated stage and that the issues were already framed. Aggrieved by this order, the defendants preferred the present revision application. The High Court, after hearing the learned counsel for the parties, observed that the power under Order 26 Rule 9 CPC is discretionary and should be exercised to assist the court in arriving at a just conclusion. The court held that the stage of the suit or delay in filing the application cannot be a ground to reject the application if it is necessary for just and proper adjudication of the dispute. The High Court set aside the impugned order and allowed the application, directing the trial court to appoint a Commissioner to inspect the suit property and submit a report within a stipulated period. The revision application was accordingly allowed.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9 CPC - Local Investigation - The trial court rejected the application for appointment of a Commissioner on the ground that the application was filed at a belated stage and issues were already framed. The High Court held that the stage of the suit or delay in filing the application cannot be a ground to reject the application if it is necessary for just and proper adjudication of the dispute. The court must exercise discretion judicially and allow such application if it aids in determining the real controversy between the parties. (Paras 1-6) B) Civil Procedure - Discretion of Court - Order 26 Rule 9 CPC - The High Court observed that the power under Order 26 Rule 9 CPC is discretionary and should be exercised to assist the court in arriving at a just conclusion. The trial court's rejection was set aside and the application was allowed, directing the trial court to appoint a Commissioner to inspect the suit property and submit a report. (Paras 5-6)
Issue of Consideration
Whether the trial court was justified in rejecting the application for appointment of a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908, on the grounds that the application was filed at a belated stage and that the issues were already framed.
Final Decision
The High Court allowed the civil revision application, set aside the impugned order dated 24-03-2004, and directed the trial court to appoint a Commissioner under Order 26 Rule 9 CPC to inspect the suit property and submit a report within a stipulated period.
Law Points
- Order 26 Rule 9 CPC
- Appointment of Commissioner
- Local Investigation
- Discretion of Court
- Delay in Filing Application
- Stage of Proceedings
