Case Note & Summary
The petitioners filed a writ petition challenging the order dated 21.03.2018 passed by the learned Trial Judge rejecting their application for appointment of a Court Commissioner. The dispute pertained to a civil suit involving boundary issues. The Appellate Court, in its order dated 24.04.2017, had observed that it would be in the interest of effective adjudication if a Court Commissioner was appointed to ascertain boundaries. However, the Trial Judge rejected the application without giving sufficient weight to this observation. The High Court, exercising its writ jurisdiction, set aside the impugned order and allowed the petitioners' application at Exhibit 35. The Court directed that all expenses for the appointment of the Court Commissioner shall be borne exclusively by the petitioners. It further clarified that both parties would have the opportunity to lodge objections to the Commissioner's report and to cross-examine the Commissioner if examined in the suit. The weightage to be given to the report was kept open. The rule was made absolute with no order as to costs.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Discretion of Trial Judge - Code of Civil Procedure, 1908, Order 26 Rule 9 - The Trial Judge rejected the application for appointment of a Court Commissioner. The High Court set aside the order, holding that in the peculiar facts, the Trial Judge ought to have given sufficient weight to the Appellate Court's observation that appointment of a Court Commissioner would be in the interest of effective adjudication. The application was allowed, with expenses to be borne by the petitioners. (Paras 3-5)
Issue of Consideration
Whether the Trial Judge erred in rejecting the application for appointment of a Court Commissioner despite the Appellate Court's suggestion that such appointment would aid effective adjudication.
Final Decision
The impugned order dated 21.03.2018 is set aside. The petitioners' application at Exhibit 35 is allowed. All expenses towards appointment of Court Commissioner shall be borne exclusively by the petitioners. Both parties will have opportunity to lodge objections to the Commissioner's Report and to cross-examine the Commissioner if examined. The weightage of the report is kept open. Rule made absolute with no order as to costs.
Law Points
- Appointment of Court Commissioner
- Discretion of Trial Judge
- Weight to Appellate Court Observations
- Civil Procedure
Case Details
2019 LawText (BOM) (04) 144
WRIT PETITION NO. 6693 OF 2018
Mr. Prasanna Shahane i/b Milind Deshmukh for the Petitioners, Mr. Kalpesh Patil for the Respondent No.1
Jaisingh Bhau Nalawade and Ors.
Uttam Kundalik Nalawade and Anr.
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Nature of Litigation
Civil writ petition challenging rejection of application for appointment of Court Commissioner in a suit involving boundary disputes.
Remedy Sought
Petitioners sought setting aside of the Trial Judge's order dated 21.03.2018 rejecting their application for appointment of Court Commissioner.
Filing Reason
The Trial Judge rejected the application despite the Appellate Court's suggestion that appointment of a Court Commissioner would aid effective adjudication.
Previous Decisions
The Appellate Court in its order dated 24.04.2017 observed that it would be in the interest of effective adjudication if a Court Commissioner is appointed. The Trial Judge rejected the application on 21.03.2018.
Issues
Whether the Trial Judge erred in rejecting the application for appointment of a Court Commissioner despite the Appellate Court's observation.
Submissions/Arguments
Petitioners argued that the Trial Judge did not give sufficient weight to the Appellate Court's observation.
Respondent No.1 opposed the application.
Ratio Decidendi
In the peculiar facts of the case, where the Appellate Court itself suggested that appointment of a Court Commissioner would be in the interest of effective adjudication, the Trial Judge ought to have exercised discretion in favour of the petitioners. The impugned order was set aside and the application was allowed.
Judgment Excerpts
the Appeal Court had itself suggested that it will be in the interest of effective adjudication of the issue involved in this suit, if the parties seek for appointment of the Court Commissioner.
Learned Trial Judge has not given to the sufficient weight to the observations made by the Appeal Court in its application dated 24.04.2017.
the Trial Judge in the peculiar facts of the present case was required to exercise discretion in favour of Petitioners herein.
Procedural History
The petitioners filed an application (Exhibit 35) before the Trial Judge for appointment of a Court Commissioner. The Trial Judge rejected the application on 21.03.2018. The petitioners then filed the present writ petition before the High Court challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
