Case Note & Summary
The petitioner, Hemantkumar Chandrakant Gaywala, original defendant No.4, filed a Special Civil Application 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. 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 suit land pursuant to that sale deed. In the suit, the plaintiffs filed an application (Exhibit 6) for appointment of a Court Commissioner on 28.2.2024 to ascertain possession of the suit property. The trial court appointed the Commissioner on the same day without issuing notice to the petitioner. The Commissioner issued a notice dated 18.3.2024, which was also not served on the petitioner. The petitioner contended that the appointment of a Commissioner for collecting evidence is outside the scope of Order 26 Rule 9 of the Code of Civil Procedure, 1908, and that the order was passed without affording him an opportunity of being heard. The High Court, after hearing the petitioner's advocate (respondents were served but did not appear), held that the appointment of a Court Commissioner without notice to the affected party violates principles of natural justice. The court further held that the Commissioner cannot be appointed for the purpose of collecting evidence; the scope of Order 26 Rule 9 is limited to elucidating matters in dispute. Consequently, the High Court quashed and set aside the impugned order dated 6.3.2024 and allowed the petition.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 Code of Civil Procedure, 1908 - Notice to affected party - The trial court appointed a Court Commissioner without issuing notice to the defendant-petitioner, who was a title holder of the suit property. The High Court held that such appointment without notice violates principles of natural justice and the Commissioner cannot be appointed for collecting evidence. The impugned order was quashed and set aside. (Paras 1-8) B) Civil Procedure - Scope of Order 26 Rule 9 - Code of Civil Procedure, 1908 - Elucidation of matters in dispute - The application for appointment of Commissioner was filed to ascertain possession, which is a matter of evidence. The High Court held that the appointment of Commissioner for collecting evidence is outside the scope of Order 26 Rule 9 CPC. The Commissioner can only be appointed to elucidate matters in dispute, not to collect evidence. (Paras 4-8)
Issue of Consideration
Whether the appointment of a Court Commissioner under Order 26 Rule 9 CPC without 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 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 under Order 26 Rule 9 CPC must be preceded by notice to affected parties
- Commissioner cannot be appointed for collecting evidence
- Order 26 Rule 9 CPC scope limited to elucidating matters in dispute
