Case Note & Summary
The petitioner, original defendant No.1 in Special Civil Suit No.21 of 2011, challenged the order dated 2nd December 2011 passed by the learned Civil Judge, Senior Division (Corporation Court), Aurangabad, which allowed an application (Exh34) filed by the plaintiff/respondent No.1 and appointed the City Survey Officer, Aurangabad, as a court commissioner to measure the suit property. The petitioner contended that the appointment of a commissioner was unnecessary as the identity of the property was not in dispute and that the trial court had acted without jurisdiction. The respondent No.1 argued that measurement was essential to determine the exact extent and boundaries of the property in dispute. The High Court, after hearing the parties, held that Order 26 Rule 9 CPC permits the appointment of a commissioner for local investigation to elucidate any matter in dispute, including measurement, and that the trial court had exercised its discretion properly. The court further held that the revisional jurisdiction under Section 115 CPC is limited and cannot be used to interfere with a discretionary order unless it is perverse or suffers from a jurisdictional error. Since the petitioner failed to establish any such error, the writ petition was dismissed and the order appointing the commissioner was upheld.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9 CPC - Local Investigation - The court considered whether appointment of a commissioner for measurement of property is permissible even when the identity of the property is not in dispute. Held that Order 26 Rule 9 CPC empowers the court to appoint a commissioner for local investigation to elucidate any matter in dispute, including measurement, and such appointment is discretionary. The trial court's order appointing the City Survey Officer as commissioner was upheld as it did not suffer from any jurisdictional error or material irregularity. (Paras 2-5) B) Civil Procedure - Revision - Section 115 CPC - Interference with Discretionary Orders - The court examined the scope of revision against an order appointing a commissioner. Held that the revisional court should not interfere with a discretionary order unless it is shown to be perverse, without jurisdiction, or suffers from material irregularity. The petitioner failed to demonstrate any such error, and the revision was dismissed. (Paras 6-8)
Issue of Consideration
Whether the appointment of a court commissioner for measurement of suit property under Order 26 Rule 9 CPC is permissible when the identity of the property is not in dispute, and whether the impugned order suffers from any jurisdictional error or material irregularity warranting interference under Section 115 CPC.
Final Decision
The writ petition is dismissed. The order dated 2nd December 2011 passed by the learned Civil Judge, Senior Division (Corporation Court), Aurangabad, allowing application (Exh34) and appointing City Survey Officer as commissioner, is upheld. Rule discharged. No order as to costs.
Law Points
- Order 26 Rule 9 CPC allows appointment of commissioner for local investigation to elucidate any matter in dispute
- including measurement of property
- even if the property itself is not disputed
- Appointment of commissioner is discretionary and not to be interfered with lightly
- Revision under Section 115 CPC is maintainable against order appointing commissioner if it suffers from jurisdictional error or material irregularity
