Case Note & Summary
The petitioners, defendants in Regular Civil Suit No.98 of 2008, challenged two orders passed by the 5th Joint Civil Judge, Junior Division, Pune: (1) an order dated 22 November 2017 appointing a Court Commissioner to measure the suit land bearing survey No.70/6 out of survey No.70 at Baner, Pune, and submit a report; and (2) an order dated 27 March 2018 rejecting the review application against the first order. The respondent-plaintiffs had instituted the suit for perpetual injunction restraining the defendants from encroaching upon the suit land and from obstructing their possession. The plaintiffs claimed ownership through a registered Gift Deed. The defendants denied the plaintiffs' title and possession, asserting their own rights. During the pendency of the suit, the plaintiffs filed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Court Commissioner to measure the suit land and identify the encroachment. The trial court allowed the application, appointing a Commissioner. The defendants filed a review application under Order 47 Rule 1 CPC, which was rejected. The petitioners then approached the High Court under Article 227 of the Constitution. The High Court examined the scope of Order 26 Rule 9 CPC and held that the appointment of a Court Commissioner is a procedural order aimed at assisting the court in ascertaining the identity and extent of the suit property. The court noted that the trial court had not exceeded its jurisdiction, as the commissioner's report would not be binding and both parties could participate. Regarding the review, the court held that a review under Order 47 Rule 1 CPC is not maintainable against a procedural order which is not a decree or appealable order. The court found no error in the trial court's orders and dismissed the petition, upholding the appointment of the commissioner and the rejection of the review.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - The trial court appointed a Court Commissioner to measure the suit land and submit a report in a perpetual injunction suit. The petitioners challenged this order as exceeding jurisdiction. Held that the appointment of a Court Commissioner under Order 26 Rule 9 CPC is a procedural order aimed at elucidating the identity and extent of the suit property, and the trial court did not commit any jurisdictional error. (Paras 1-10) B) Civil Procedure - Review - Order 47 Rule 1 CPC - The petitioners filed a review against the order appointing a Court Commissioner, which was rejected. Held that a review is not maintainable against a procedural order which is not a decree or appealable order. The review application was rightly rejected. (Paras 11-15) C) Civil Procedure - Court Commissioner - Prejudice - The petitioners contended that the appointment of a Court Commissioner would cause prejudice as the commissioner would encroach upon the functions of the court. Held that no prejudice is caused as both parties are entitled to participate in the commission proceedings and the report is not binding on the court. (Paras 16-17)
Issue of Consideration
Whether the appointment of a Court Commissioner to measure the suit land and submit a report, and the rejection of the review application against that order, are legally sustainable.
Final Decision
The High Court dismissed the writ petition, upholding the order appointing a Court Commissioner and the rejection of the review application. The court held that the trial court did not exceed its jurisdiction and that the review was not maintainable.
Law Points
- Appointment of Court Commissioner under Order 26 Rule 9 CPC is a procedural order
- not a decree or appealable order
- Review under Order 47 Rule 1 CPC is not maintainable against a procedural order
- Court Commissioner can be appointed to ascertain identity and extent of suit property
- No prejudice caused by appointment of commissioner as both parties can participate
