Case Note & Summary
The petitioner, original defendant No.4, filed a petition under Article 227 of the Constitution of India challenging an order dated 6.3.2024 passed by the learned 7th Additional Civil Judge, Surat in Regular Civil Suit No.109 of 2024 below Application Exhibit 6. The respondents (plaintiffs) had instituted a suit for partition, declaration, permanent injunction, and cancellation of a registered sale deed dated 10.8.2023. The petitioner claimed to be the title holder of the land in question pursuant to that sale deed. In the suit proceedings, the plaintiffs filed an application for appointment of a Court Commissioner on 28.2.2024, and the trial court appointed the Commissioner without issuing any notice to the petitioner. The notice issued by the Court Commissioner dated 18.3.2024 was also not served upon the petitioner. The plaintiffs contended in the application that the petitioner had purchased a 1/2 share in the suit property and that the plaintiffs were in possession of the suit land for years, and the Commissioner was needed to ascertain the fact of possession. The petitioner argued that the appointment of a Court Commissioner for collecting evidence is not permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908, and that the application was outside the scope of that provision. The High Court, after hearing the petitioner's advocate and perusing the record, held that the appointment of a Court Commissioner without notice to the affected party and for the purpose of collecting evidence is illegal and beyond the scope of Order 26 Rule 9 CPC. The court quashed and set aside the impugned order, allowing the petition.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Natural Justice - The trial court appointed a Court Commissioner without notice to the defendant-petitioner, who was a title holder of the suit property. The application for appointment was filed to ascertain possession, which is essentially for collecting evidence. Held that appointment of Commissioner without notice to the affected party and for collecting evidence is beyond the scope of Order 26 Rule 9 CPC and violative of principles of natural justice. The impugned order was quashed and set aside. (Paras 1-8)
Issue of Consideration
Whether the appointment of a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 without issuing notice to the defendant and for the purpose of collecting evidence is legally sustainable.
Final Decision
The High Court allowed the petition and quashed and set aside the impugned order dated 6.3.2024 passed by the learned 7th Additional Civil Judge, Surat in Regular Civil Suit No.109 of 2024 below Application Exhibit 6.
Law Points
- Appointment of Court Commissioner without notice to affected party violates principles of natural justice
- Order 26 Rule 9 CPC cannot be used for collecting evidence
- Court Commissioner appointment is not a routine matter
