Case Note & Summary
The petitioners challenged an interlocutory order dated 26/02/2014 passed by the Joint Civil Judge, J.D., Washi, Dist. Osmanabad, below Exh.18 in RCS No.268/2013. The respondents had filed the suit seeking a declaration of ownership and perpetual injunction in respect of certain agricultural lands. The respondents moved an application for appointment of a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908, alleging encroachment and divisions in the suit property. The trial court allowed the application and appointed a Commissioner. The petitioners contended that the application was a repetition of plaint averments and that without framing of issues and recording of evidence, a Commissioner could not be appointed. The High Court held that the appointment of a Commissioner before framing of issues and recording of evidence is premature and amounts to collecting evidence, which is not permissible under Order 26 Rule 9 CPC. The court set aside the impugned order and directed the trial court to proceed with the suit in accordance with law.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9 CPC - Premature Appointment - Commissioner appointed before framing of issues and recording of evidence in a suit for declaration and injunction - Held that such appointment is premature and amounts to collecting evidence, which is impermissible - Impugned order set aside (Paras 1-8).
Issue of Consideration
Whether a Court Commissioner can be appointed under Order 26 Rule 9 of the Code of Civil Procedure, 1908 before framing of issues and recording of evidence in a suit for declaration of ownership and perpetual injunction.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 26/02/2014 below Exh.18, and directed the trial court to proceed with the suit in accordance with law.
Law Points
- Appointment of Court Commissioner under Order 26 Rule 9 CPC is premature before framing of issues and recording of evidence
- Commissioner cannot be appointed to collect evidence or decide disputed questions of fact without trial
Case Details
2014 LawText (BOM) (08) 19
Writ Petition No.3600 of 2014
Mr.S.R.Choukidar for petitioners, Mr.N.S.Tekale for respondents
Kalyan Santram Kawade and others
Khanderao alias Khandu Ganpati Kawade and others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil writ petition challenging an interlocutory order appointing a Court Commissioner in a suit for declaration of ownership and perpetual injunction.
Remedy Sought
Petitioners sought quashing of the order dated 26/02/2014 appointing a Court Commissioner.
Filing Reason
The trial court appointed a Court Commissioner before framing of issues and recording of evidence, which the petitioners contended was premature and illegal.
Previous Decisions
The Joint Civil Judge, J.D., Washi allowed the application Exh.18 and appointed a Court Commissioner.
Issues
Whether a Court Commissioner can be appointed under Order 26 Rule 9 CPC before framing of issues and recording of evidence.
Submissions/Arguments
Petitioners argued that without framing of issues and recording of evidence, the Court Commissioner could not have been appointed, and the application was a repetition of plaint averments.
Respondents contended that the appointment was necessary due to allegations of encroachment and divisions in the suit property.
Ratio Decidendi
Appointment of a Court Commissioner under Order 26 Rule 9 CPC before framing of issues and recording of evidence is premature and amounts to collecting evidence, which is not permissible. The Commissioner cannot be appointed to decide disputed questions of fact without a trial.
Judgment Excerpts
Without framing of issues and without recording the oral evidence of the litigating parties, the Court Commissioner could not have been appointed.
The appointment of a Commissioner before framing of issues and recording of evidence is premature and amounts to collecting evidence.
Procedural History
The respondents filed RCS No.268/2013 seeking declaration and injunction. They moved application Exh.18 for appointment of a Court Commissioner. The Joint Civil Judge allowed the application on 26/02/2014. The petitioners challenged this order by way of Writ Petition No.3600 of 2014 before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
