Case Note & Summary
The petitioners, who are defendants in a suit for specific performance of contract (O.S. No. 445/2011) pending before the Principal Senior Civil Judge and Chief Judicial Magistrate, Ramanagara, filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking appointment of a Court Commissioner to inspect the suit schedule property and ascertain its physical features. The trial court rejected the application on the ground that the application did not fall under Order 26 Rule 9 CPC and that the petitioners could examine witnesses to prove the physical features. Aggrieved, the petitioners filed a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka. The High Court examined the scope of inherent powers under Section 151 CPC and held that the trial court's approach was too technical. The court observed that the purpose of appointing a Commissioner is to collect evidence and ascertain facts which are necessary for just adjudication. The court noted that the suit is for specific performance and the physical features of the property are crucial. The High Court held that the trial court ought to have allowed the application to do complete justice between the parties. Accordingly, the High Court quashed the impugned order dated 28.03.2022 and directed the trial court to appoint a Commissioner as prayed for. The writ petition was allowed.
Headnote
A) Civil Procedure Code - Inherent Powers - Section 151 CPC - Appointment of Commissioner - The court held that the inherent powers under Section 151 CPC can be invoked for appointment of a Commissioner to ascertain the physical features of the property in a suit for specific performance, even if the application does not strictly fall under Order 26 Rule 9 CPC. The trial court's rejection of such application was held to be erroneous as it would defeat the ends of justice. (Paras 5-8) B) Civil Procedure Code - Order 26 Rule 9 CPC - Local Investigation - The court clarified that Order 26 Rule 9 CPC is not exhaustive and the court can appoint a Commissioner under Section 151 CPC to do justice between the parties. The purpose of local investigation is to collect evidence at the instance of the party seeking it, and the court should not refuse such application if it is necessary for just adjudication. (Paras 6-7) C) Constitutional Law - Article 227 - Supervisory Jurisdiction - The High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, can interfere with an order passed by the trial court if it suffers from patent error of law and results in failure of justice. The impugned order rejecting the application under Section 151 CPC was quashed. (Para 8)
Issue of Consideration
Whether the trial court was justified in rejecting the application filed under Section 151 CPC seeking appointment of a Commissioner to ascertain the physical features of the suit schedule property in a suit for specific performance.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 28.03.2022 passed by the Principal Senior Civil Judge and Chief Judicial Magistrate, Ramanagara, in O.S. No. 445/2011, and directed the trial court to appoint a Commissioner as prayed for by the petitioners.
Law Points
- Inherent powers under Section 151 CPC
- Appointment of Commissioner
- Suit for specific performance
- Ascertainment of physical features of property
- Order 26 Rule 9 CPC
- Article 227 of Constitution of India
