Case Note & Summary
The Mapusa Municipal Council filed a writ petition challenging an order of the Civil Judge, Senior Division, Mapusa, dated 30th January 2013, which appointed a Commissioner for measurement and valuation of a suit property in a pending civil suit. The respondents, legal heirs of Sitaram Atmaram Naik and others, had filed the suit seeking declaration of ownership and permanent injunction against the Municipal Council. The trial court, exercising powers under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, appointed a Commissioner to ascertain the exact area and value of the property, which was disputed. The Municipal Council contended that the appointment was unnecessary and that the court had no jurisdiction to do so at that stage. The High Court, after hearing all parties, held that the trial court's order was within its discretion and necessary for the just adjudication of the dispute. The court noted that the Commissioner's report would help in determining the factual aspects regarding the property's measurement and valuation. The High Court dismissed the petition, observing that no interference was called for in writ jurisdiction as the order was not perverse or without jurisdiction. The court also noted that the petitioner could raise objections before the trial court if aggrieved by the Commissioner's report.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9, Section 151 Code of Civil Procedure, 1908 - The trial court appointed a Commissioner for measurement and valuation of the suit property to ascertain the exact area and value, which was challenged by the petitioner Municipal Council. The High Court held that the appointment was within the court's discretion and necessary for just adjudication, and no interference was warranted in writ jurisdiction. (Paras 3-5) B) Writ Jurisdiction - Interference with Interlocutory Orders - The High Court declined to interfere with the trial court's order appointing a Commissioner, as the order was not perverse or without jurisdiction, and the petitioner had alternative remedy of raising objections before the trial court. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in appointing a Commissioner for measurement and valuation of the suit property under Order 26 Rule 9 of the Code of Civil Procedure, 1908, and whether the High Court should interfere with such an order in writ jurisdiction.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order appointing a Commissioner for measurement and valuation of the suit property.
Law Points
- Order 26 Rule 9 CPC
- Section 151 CPC
- inherent powers of court
- appointment of commissioner for local investigation
- discretion of trial court
- interference in writ jurisdiction
