Case Note & Summary
The petitioners, legal representatives of the original plaintiff, challenged an order dated 25.06.2018 passed by the Principal Senior Civil Judge, Chikkaballapur in FDP No.8/2016, whereby the court issued a commission warrant without any application or notice to the parties. The writ petition was filed under Article 227 of the Constitution of India. The High Court observed that the trial court had acted suo motu, which is not permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908. The court noted that the power to issue a commission must be exercised only after considering the necessity and after giving an opportunity to the parties to be heard. The impugned order was quashed, and the matter was remitted back to the trial court to pass a fresh order in accordance with law, after hearing the parties. The court also directed the trial court to expedite the disposal of the final decree proceedings.
Headnote
A) Civil Procedure - Commission - Order 26 Rule 9 CPC - Suo Motu Issuance - The trial court issued a commission warrant without any application or notice to the parties, which is impermissible under Order 26 Rule 9 CPC - The court must first consider the necessity of a commission and pass a reasoned order - Held that the impugned order is unsustainable and liable to be quashed (Paras 1-5).
Issue of Consideration
Whether the trial court could issue a commission warrant suo motu without any application or notice to the parties in final decree proceedings
Final Decision
The writ petition is allowed. The impugned order dated 25.06.2018 passed by the Principal Senior Civil Judge, Chikkaballapur in FDP No.8/2016 is quashed. The matter is remitted back to the trial court to pass a fresh order in accordance with law, after hearing the parties. The trial court is directed to expedite the disposal of the final decree proceedings.
Law Points
- Commission warrant cannot be issued without prior application and notice to parties
- Order 26 Rule 9 CPC requires court to consider necessity of commission
- Section 151 CPC cannot be used to bypass procedural requirements
Case Details
2019 LawText (KAR) (06) 15
Writ Petition No. 33877 of 2018 (GM-CPC)
Sri. Padmanabha Mahale, Senior Counsel for Sri. N B Nijalingappa, Advocate for petitioners; Sri. N G Phadke & Sri. Vikram Phadke, Advocates for respondent 1(B)
Y. R. Lakshminarasimhaiah (since dead by LRs) and others
Y. R. Lakshminarayanappa (since dead by LRs) and others
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order issuing commission warrant in final decree proceedings
Remedy Sought
Quashing of the order dated 25.06.2018 issuing commission warrant in FDP No.8/2016
Filing Reason
The trial court issued a commission warrant suo motu without any application or notice to the parties
Previous Decisions
The trial court passed the impugned order on 25.06.2018 in FDP No.8/2016
Issues
Whether the trial court could issue a commission warrant suo motu without any application or notice to the parties
Submissions/Arguments
The petitioners argued that the commission warrant was issued without any application and without notice to them, violating principles of natural justice
The respondents supported the order, but the court found the procedure adopted by the trial court to be illegal
Ratio Decidendi
A commission warrant cannot be issued suo motu by the court without any application or notice to the parties. The power under Order 26 Rule 9 CPC must be exercised only after considering the necessity and after giving an opportunity to the parties to be heard.
Judgment Excerpts
This case reminds me of what the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE’S INDIAN APPEALS (1871-72), VOL.14, PAGE 605 = 17 W.R.459 ; it reads: 'These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated'
Procedural History
The trial court in FDP No.8/2016 passed an order on 25.06.2018 issuing a commission warrant. The petitioners challenged this order by filing a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9, Section 151
- Constitution of India: Article 227
