Case Note & Summary
The petitioners, original plaintiffs in Regular Civil Suit No.19/2002, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 01/04/2011 passed by the 4th Joint Civil Judge, Junior Division, Achalpur. The impugned order allowed the respondent's application for appointment of a Court Commissioner, appointing the Taluka Inspector of Land Records to report on the location and possession of suit site 'A,B,C,D' and whether any construction was going on. The suit was filed by the petitioners seeking declaration that a sale deed dated 12/01/2000 was null and void, cancellation of the deed, possession of the suit site after demolition of construction, and injunction against the respondent-defendant No.1. The respondent filed an application for appointment of Court Commissioner. The High Court noted that the application was filed after the trial had commenced and was in the nature of an amendment of pleadings. Under Order VI Rule 17 of the Code of Civil Procedure, 1908, no application for amendment can be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The respondent did not seek leave of the court. Therefore, the impugned order was quashed and set aside. The writ petition was allowed. Rule made absolute with no order as to costs.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order VI Rule 17 CPC - Application filed after commencement of trial without leave of court - The trial court allowed the respondent's application for appointment of Court Commissioner to report on location and possession of suit site and construction activity. The High Court held that the application was in the nature of amendment of pleadings and could not be allowed after trial had commenced without leave of the court. The impugned order was quashed and set aside. (Paras 2-6)
B) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Trial commencement - The court observed that the application for appointment of Court Commissioner was filed after the trial had commenced, and no leave of the court was obtained. Therefore, the application was not maintainable. (Paras 4-6)
Issue of Consideration
Whether the trial court was justified in allowing the application for appointment of Court Commissioner when the application was filed after the commencement of trial and without seeking leave of the court as required under Order VI Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, quashed and set aside the impugned order dated 01/04/2011. Rule made absolute with no order as to costs.
Law Points
- Appointment of Court Commissioner
- Order VI Rule 17 CPC
- Amendment of pleadings
- Trial commencement
- Leave of court
- Civil Procedure Code
- 1908
Case Details
2011 LawText (BOM) (07) 132
Writ Petition No.2071/2011
Shri J. J. Chandurkar for petitioners; Shri R. L. Khapre & Shri Kavimandan for respondent
Syed. Mushtaque Ahmad S/o Syed. Ismail and others
Syed Ashique Ali Khan S/o Haidar Ali
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Nature of Litigation
Civil writ petition challenging order allowing appointment of Court Commissioner in a regular civil suit.
Remedy Sought
Petitioners sought quashing of order dated 01/04/2011 allowing appointment of Court Commissioner.
Filing Reason
The trial court allowed the respondent's application for appointment of Court Commissioner after trial had commenced, without leave of court.
Previous Decisions
The trial court (4th Joint Civil Judge, Junior Division, Achalpur) passed order dated 01/04/2011 allowing the application for appointment of Court Commissioner.
Issues
Whether the application for appointment of Court Commissioner was in the nature of amendment of pleadings?
Whether the application could be allowed after commencement of trial without leave of court under Order VI Rule 17 CPC?
Submissions/Arguments
Petitioners argued that the application for appointment of Court Commissioner was filed after trial commenced and was in the nature of amendment of pleadings, requiring leave of court under Order VI Rule 17 CPC.
Respondent contended that the application was for appointment of Commissioner and not an amendment, and was maintainable.
Ratio Decidendi
An application for appointment of Court Commissioner filed after commencement of trial, which is in the nature of amendment of pleadings, cannot be allowed without leave of court as required under Order VI Rule 17 of the Code of Civil Procedure, 1908.
Judgment Excerpts
The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 01/04/2011 passed by 4th Joint Civil Judge, Junior Division, Achalpur, by which order the application filed by the respondent for appointment of Court Commissioner came to be allowed...
The application for appointment of Court Commissioner was filed after the trial had commenced. The said application was in the nature of an amendment of the pleadings. Under Order VI Rule 17 of the Code of Civil Procedure, 1908, no application for amendment can be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Procedural History
The petitioners filed Regular Civil Suit No.19/2002 seeking declaration and cancellation of sale deed, possession, and injunction. The respondent-defendant filed an application for appointment of Court Commissioner. The trial court allowed the application on 01/04/2011. The petitioners challenged this order by filing Writ Petition No.2071/2011 under Articles 226 and 227 of the Constitution of India before the High Court of Bombay at Nagpur Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17
- Constitution of India: Articles 226, 227
