Case Note & Summary
The case involves a civil revision petition filed by the plaintiffs (Devaraj and Shankar) against the order dated August 16, 2022, passed by the trial court in I.A.No.225 of 2018 in O.S.No.172 of 2018. The plaintiffs had filed a suit for partition and permanent injunction against the defendants (Natarajan and others). During the pendency of the suit, the plaintiffs filed an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking appointment of an Advocate Commissioner to identify the suit property and note the physical features. The trial court dismissed the application, holding that the appointment of a Commissioner for identification of property is not permissible under Order 26 Rule 9 CPC, as the provision is meant for elucidating matters in dispute and not for collecting evidence for a party. Aggrieved, the plaintiffs filed the present revision under Article 227 of the Constitution of India. The High Court examined the scope of Order 26 Rule 9 CPC and observed that the appointment of a Commissioner is discretionary and can be made only when the court finds it necessary for elucidating any matter in dispute. The court noted that the plaintiffs had already filed the suit and the application was filed after the commencement of trial, indicating that the plaintiffs sought to collect evidence through the Commissioner, which is not permissible. The High Court upheld the trial court's order, finding no illegality or material irregularity, and dismissed the revision petition. The court also observed that inherent powers under Section 151 CPC cannot be invoked to circumvent the specific provisions of Order 26 Rule 9.
Headnote
A) Civil Procedure Code - Appointment of Advocate Commissioner - Order 26 Rule 9 CPC - Identification of Property - The court held that appointment of Advocate Commissioner for identification of property is permissible only when the court finds it necessary for elucidating matters in dispute, and not for collecting evidence for a party. The trial court's dismissal of the application was upheld as the application was filed after the commencement of trial and the plaintiffs sought to collect evidence through the Commissioner. (Paras 1-14) B) Civil Procedure Code - Inherent Powers - Section 151 CPC - The court observed that inherent powers under Section 151 CPC cannot be invoked to circumvent the specific provisions of Order 26 Rule 9 CPC. The application for appointment of Commissioner was not maintainable as it did not satisfy the requirements of Order 26 Rule 9. (Paras 10-12) C) Constitutional Law - Supervisory Jurisdiction - Article 227 of the Constitution of India - The High Court, in exercise of its supervisory jurisdiction under Article 227, examined the correctness of the trial court's order and found no illegality or material irregularity warranting interference. The revision petition was dismissed. (Paras 13-14)
Issue of Consideration
Whether the appointment of an Advocate Commissioner for identification of property is permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908, when the court finds it necessary for elucidating matters in dispute, and whether the trial court erred in dismissing the application.
Final Decision
The High Court dismissed the civil revision petition, upholding the trial court's order dated August 16, 2022, which dismissed the application for appointment of Advocate Commissioner. No costs. Consequently, the connected miscellaneous petition is closed.
Law Points
- Order 26 Rule 9 CPC
- Appointment of Advocate Commissioner
- Identification of property
- Elucidating matters in dispute
- Not for collecting evidence
- Section 151 CPC
- Article 227 Constitution of India
