Case Note & Summary
The petitioners, who are the plaintiffs in O.S. No.43 of 2014 on the file of the Subordinate Judge, Ariyalur, filed a suit for partition and separate possession of suit properties. During the pendency of the suit, the plaintiffs filed I.A. No.650 of 2018 under Order 26 Rule 9 read with Section 151 CPC seeking appointment of an Advocate Commissioner to inspect the suit properties, identify the properties, note down the physical features, and collect data regarding the properties. The Trial Court dismissed the application on two grounds: first, that the defendants had denied the title of the plaintiffs, and second, that the application was filed belatedly after the commencement of trial. Aggrieved, the plaintiffs filed the present Civil Revision Petition under Article 227 of the Constitution of India. The High Court examined the scope of Order 26 Rule 9 CPC and held that the appointment of a Commissioner for identification of property and collection of data is permissible even when the defendants deny title, as the purpose is to assist the court in proper adjudication and not to collect evidence for a party. The court further held that mere delay in filing the application is not a ground to reject it, especially when the suit is at the stage of trial and the Commissioner's report would help in proper adjudication. The court also observed that the Trial Court could have exercised its inherent powers under Section 151 CPC to appoint a Commissioner even if the application was belated, to meet the ends of justice. Accordingly, the High Court allowed the Civil Revision Petition, set aside the impugned order dated January 24, 2019, and directed the Trial Court to appoint an Advocate Commissioner as prayed for, subject to payment of necessary expenses by the plaintiffs.
Headnote
A) Civil Procedure Code - Appointment of Advocate Commissioner - Order 26 Rule 9 CPC - Identification of Property - The court held that appointment of an Advocate Commissioner for identification of suit properties and collection of data is permissible even when defendants deny title, as the purpose is to assist the court in proper adjudication and not to collect evidence for a party. The Trial Court's order dismissing the application was set aside. (Paras 5-10) B) Civil Procedure Code - Delay and Laches - Order 26 Rule 9 CPC - The court held that mere delay in filing the application for appointment of Commissioner is not a ground to reject it, especially when the suit is at the stage of trial and the Commissioner's report would help in proper adjudication. (Paras 11-12) C) Civil Procedure Code - Inherent Powers - Section 151 CPC - The court observed that the Trial Court could have exercised its inherent powers to appoint a Commissioner even if the application was belated, to meet the ends of justice. (Para 13)
Issue of Consideration
Whether the Trial Court was justified in dismissing the application for appointment of an Advocate Commissioner under Order 26 Rule 9 CPC on the ground that the defendants had denied the title of the plaintiffs and that the application was filed belatedly.
Final Decision
The Civil Revision Petition is allowed. The impugned order dated January 24, 2019 passed in I.A. No.650 of 2018 in O.S. No.43 of 2014 by the Subordinate Judge, Ariyalur is set aside. The Trial Court is directed to appoint an Advocate Commissioner as prayed for in I.A. No.650 of 2018, subject to the plaintiffs paying the necessary expenses. No costs. Consequently, connected miscellaneous petition is closed.
Law Points
- Appointment of Advocate Commissioner under Order 26 Rule 9 CPC is permissible for identification of property and collection of data even when defendants deny title
- provided the application is not for collecting evidence but for proper adjudication
- Order 26 Rule 9 CPC
- Section 151 CPC
- Article 227 of the Constitution of India
