Case Note & Summary
The petitioners (plaintiffs in the suit) filed O.S. No. 5195/2017 before the XII Additional City Civil and Sessions Judge, Bengaluru, seeking a permanent injunction against the respondent (defendant) in respect of suit property described by boundaries and survey number. The respondent filed an application under Order XXVI Rule 9 CPC (I.A. No. 6) seeking appointment of a court commissioner to ascertain the boundaries of the suit property, contending that the description in the plaint was insufficient. The trial court rejected the application by order dated 05.02.2020, holding that the plaintiff had not pleaded the exact boundaries in the plaint and that the commissioner's report would not be evidence. Aggrieved, the respondent filed the present writ petition under Articles 226 and 227 of the Constitution of India. The High Court examined the provisions of Order VII Rule 1, Order XXVI Rule 9, and Order XXVI Rule 10A CPC. It held that Order VII Rule 1 does not require a plaintiff to plead exact boundaries; it only requires sufficient description to identify the property. The court further held that Order XXVI Rule 9 permits appointment of a commissioner to ascertain boundaries when the description is insufficient, and that the commissioner's report is treated as evidence under Rule 10A. The court also noted the inherent power under Section 151 CPC. The High Court set aside the trial court's order and allowed the application for appointment of a commissioner, directing the trial court to appoint a commissioner to inspect the suit property and submit a report.
Headnote
A) Civil Procedure Code - Order VII Rule 1 - Pleading of Boundaries - Order VII Rule 1 CPC does not require a plaintiff to plead the exact boundaries of the suit property; it only requires sufficient description to identify the property. The trial court erred in holding that the plaintiff must plead boundaries with precision. (Paras 6-8) B) Civil Procedure Code - Order XXVI Rule 9 - Appointment of Commissioner - Ascertainment of Boundaries - Under Order XXVI Rule 9 CPC, a court may appoint a commissioner to ascertain boundaries or to make local investigation when the description of the property in the plaint is insufficient. The application for appointment of commissioner cannot be rejected solely on the ground that the plaintiff failed to plead boundaries. (Paras 9-11) C) Civil Procedure Code - Order XXVI Rule 10A - Commissioner's Report as Evidence - The report of a commissioner appointed under Order XXVI Rule 9 CPC, along with evidence taken by him, shall be treated as evidence in the suit under Order XXVI Rule 10A CPC. The trial court's observation that the commissioner's report would not be evidence is erroneous. (Para 12) D) Civil Procedure Code - Section 151 - Inherent Powers - The court has inherent power under Section 151 CPC to appoint a commissioner for the ends of justice, even if the application does not strictly fall under Order XXVI Rule 9 CPC. The trial court ought to have exercised its discretion in favour of appointment to ascertain the correct boundaries. (Para 13)
Issue of Consideration
Whether the trial court was justified in rejecting the application filed by the respondent/defendant under Order XXVI Rule 9 CPC for appointment of a commissioner to ascertain the boundaries of the suit property, on the ground that the plaintiff had not pleaded the exact boundaries in the plaint.
Final Decision
The High Court allowed the writ petition, set aside the order dated 05.02.2020 passed by the XII Additional City Civil and Sessions Judge, Bengaluru on I.A. No. 6 in O.S. No. 5195/2017, and directed the trial court to appoint a commissioner under Order XXVI Rule 9 CPC to inspect the suit property and submit a report.
Law Points
- Order VII Rule 1 CPC does not require plaintiff to plead exact boundaries of suit property
- Order XXVI Rule 9 CPC allows appointment of commissioner to ascertain boundaries when description is insufficient
- Order XXVI Rule 10A CPC requires commissioner's report to be treated as evidence
- Section 151 CPC saves inherent power of court to appoint commissioner for ends of justice
