Case Note & Summary
The petitioners, original defendants in RCS No.361/2009, filed a writ petition challenging the order dated 21/01/2014 passed by the Trial Court rejecting their application for appointment of a Court Commissioner for fresh measurement of the suit property. The respondent/plaintiff had filed the suit for recovery of possession of encroached land. Earlier, a T.I.L.R. had carried out measurement on 18/08/2009 and drawn a map, which was placed on record. The plaintiffs evidence was closed and the defendants were to step into the witness box. The defendants had cross-examined the T.I.L.R. on his measurement report and map. On 11/09/2013, the defendants filed an application seeking appointment of a Court Commissioner for fresh measurement and map drawing. The respondent opposed it. The Trial Court rejected the application by a cryptic order without assigning reasons. The High Court, relying on several judgments including Bento Antonio Gomes v. Rosario Salvador Carneiro, held that the impugned order was non-reasoned and set it aside. The High Court directed the Trial Court to appoint a Court Commissioner for fresh measurement and map drawing, with the costs to be borne by the petitioners. The writ petition was allowed.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Fresh Measurement - The Trial Court rejected the defendants' application for appointment of a Court Commissioner for fresh measurement of the suit property without assigning any reasons. The High Court held that the impugned order was cryptic and non-reasoned, and set it aside, directing the Trial Court to appoint a Court Commissioner for fresh measurement and map drawing. (Paras 1-6)
Issue of Consideration
Whether the Trial Court was justified in rejecting the defendants' application for appointment of a Court Commissioner for fresh measurement of the suit property without assigning any reasons.
Final Decision
The impugned order dated 21/01/2014 is quashed and set aside. The Trial Court is directed to appoint a Court Commissioner for carrying out fresh measurement of the suit property and drawing a map. The costs of the Commissioner shall be borne by the petitioners. The writ petition is allowed. Rule made absolute.
Law Points
- Order 26 Rule 9 CPC
- Court Commissioner
- Fresh Measurement
- Cryptic Order
- Reasoned Order
