Case Note & Summary
The petitioner, Shantabai Bhairu Gurav, filed a writ petition in the Bombay High Court challenging an order dated 22.6.2004 passed by the trial court in R.C.S. No. 5600 of 1995. The impugned order allowed an application (Exhibit-63) filed by the respondents-defendants under Order 26 Rule 9 of the Code of Civil Procedure, 1908, appointing a court commissioner to inspect the suit property. The commissioner was directed to complete the work and submit a report by 1.7.2004. However, the respondents failed to deposit the commissioner's fees of Rs. 500, and consequently, the commissioner could not carry out the work. The petitioner contended that the trial was being delayed because the trial court was not proceeding with the trial pending compliance of the order. The High Court observed that the application for appointment of a commissioner was filed when the plaintiff's evidence was in progress, and the trial court ought to have proceeded with the trial without waiting for the commissioner's report. The court noted that the respondents had previously filed a similar application (Exhibit-26) in 1995 which was not pressed. The High Court allowed the petition, set aside the impugned order, and directed the trial court to dispose of the suit expeditiously, preferably within six months from the date of receipt of the order. The court clarified that if the respondents still wanted a commissioner, they could apply afresh, and the trial court could consider it without delaying the trial.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 Code of Civil Procedure, 1908 - Delay in Trial - The trial court appointed a commissioner under Order 26 Rule 9 CPC but the respondents failed to deposit the commissioner's fees, causing delay. The High Court held that the trial court ought to have proceeded with the trial without waiting for the commissioner's report, and directed the trial court to dispose of the suit expeditiously, preferably within six months. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in staying the trial pending compliance of the order appointing a court commissioner under Order 26 Rule 9 CPC, and whether the petitioner is entitled to a direction to proceed with the trial without awaiting the commissioner's report.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 22.6.2004, and directed the trial court to dispose of the suit expeditiously, preferably within six months from the date of receipt of the order. The court clarified that if the respondents still wanted a commissioner, they could apply afresh, and the trial court could consider it without delaying the trial.
Law Points
- Order 26 Rule 9 CPC
- Appointment of Court Commissioner
- Delay in Trial
- Non-compliance of Order
- Trial Court's Duty to Proceed
Case Details
2005 LawText (BOM) (02) 132
Writ Petition No. 7954 of 2004
Mr. S.S. Patwardhan for the petitioner
Smt. Sindhutai Janakrao @ Laxman Nalage and Ors.
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Nature of Litigation
Civil writ petition challenging an order appointing a court commissioner under Order 26 Rule 9 CPC in a pending civil suit.
Remedy Sought
The petitioner sought to set aside the order appointing a court commissioner and to direct the trial court to proceed with the trial without awaiting the commissioner's report.
Filing Reason
The respondents-defendants filed an application (Exhibit-63) under Order 26 Rule 9 CPC for appointment of a court commissioner, which was allowed by the trial court. The petitioner contended that the respondents failed to deposit the commissioner's fees, causing delay in the trial.
Previous Decisions
A similar application (Exhibit-26) was filed by the respondents in 1995, which was either not pressed or no orders were passed.
Issues
Whether the trial court was justified in staying the trial pending compliance of the order appointing a court commissioner under Order 26 Rule 9 CPC.
Whether the petitioner is entitled to a direction to proceed with the trial without awaiting the commissioner's report.
Submissions/Arguments
The petitioner's counsel submitted that the respondents did not deposit the cost of the court commissioner, and as a result, the commissioner could not carry out the work, causing delay in the trial.
The petitioner's counsel further submitted that the trial court was not proceeding with the trial for want of compliance of the impugned order.
Ratio Decidendi
The trial court ought to have proceeded with the trial without waiting for the commissioner's report, especially when the respondents failed to deposit the commissioner's fees. The delay in trial due to non-compliance of the order appointing a commissioner is not justified, and the trial court must dispose of the suit expeditiously.
Judgment Excerpts
It appears that in 1995 also a similar application was filed (Exhibit-26) by the respondents and that application was either not pressed or no orders therein were passed by the Court.
From the perusal of the impugned order as also other material placed before me it is clear that application Exhibit-63 was filed by the respondents when the evidence of the plaintiff was in progress.
In my opinion, the trial Court ought to have proceeded with the trial without waiting for the report of the Court Commissioner.
Procedural History
The petitioner filed Writ Petition No. 7954 of 2004 in the Bombay High Court challenging the order dated 22.6.2004 passed by the trial court in R.C.S. No. 5600 of 1995, which allowed the respondents' application under Order 26 Rule 9 CPC appointing a court commissioner. The High Court heard the petition and passed the final order on 25.2.2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
