Case Note & Summary
The case involves a Civil Revision Application filed by Indian Oil Corporation Limited (the applicant) against an order passed by the Civil Judge, Senior Division, Bhandara in Regular Civil Suit No. 112/1987. The respondent No.1, Krushnarao @ Kanhaiya s/o Hariram Bhivgade, had filed a suit seeking a declaration that the selection of a third party as a distributor for LPG by the applicant was void and illegal, and seeking appointment as distributor in his place. During the pendency of the suit, the respondent No.1 filed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) for appointment of a Commissioner to ascertain the valuation of the suit for the purpose of jurisdiction. The trial court allowed the application and appointed a Commissioner. The applicant challenged this order by way of revision under Section 115 CPC. The High Court held that the appointment of a Commissioner under Order 26 Rule 9 CPC to ascertain the valuation of the suit is not permissible. The court reasoned that the valuation of a suit is a matter to be determined by the plaintiff and can be challenged by the defendant under Order 7 Rule 11 CPC. The court also held that a revision lies against such an order as it decides substantive rights of the parties. The impugned order was set aside, and the revision was allowed. The court directed the trial court to decide the issue of valuation in accordance with law.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9 CPC - Valuation of Suit - The court held that the appointment of a Commissioner to ascertain the valuation of the suit for the purpose of jurisdiction is not permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908. The valuation of a suit is a matter to be determined by the plaintiff and can be challenged by the defendant under Order 7 Rule 11 CPC. The impugned order appointing a Commissioner was set aside. (Paras 5-7) B) Civil Procedure - Revision - Maintainability - Section 115 CPC - The court held that a revision lies against an order appointing a Commissioner under Order 26 Rule 9 CPC as such an order decides substantive rights of the parties and is not merely procedural. The revision was allowed. (Para 4)
Issue of Consideration
Whether the appointment of a Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 to ascertain the valuation of the suit for the purpose of jurisdiction is legally permissible.
Final Decision
The revision application is allowed. The impugned order dated 22.3.2017 passed by the Civil Judge, Senior Division, Bhandara in Regular Civil Suit No. 112/1987 is set aside. The trial court is directed to decide the issue of valuation in accordance with law. Rule is made absolute in those terms. No order as to costs.
Law Points
- Order 26 Rule 9 CPC does not permit appointment of Commissioner to ascertain valuation of suit for purpose of jurisdiction
- Suit valuation must be determined by plaintiff and can be challenged by defendant under Order 7 Rule 11 CPC
- Revision lies against order appointing Commissioner as it decides substantive rights of parties
