Case Note & Summary
The case involves a writ petition filed by the defendants (petitioners) challenging an order of the 8th Joint Civil Judge, Junior Division, Karad, dated 17 January 2017, which allowed an application at Exhibit-41 filed by the plaintiffs (respondents) for appointment of a Court Commissioner. The plaintiffs had filed Regular Civil Suit No.231 of 2016 seeking an injunction to restrain the defendants from obstructing their possession of suit land and to protect their separate possession. In the plaint, the plaintiffs alleged that in 1986-87, the suit land was levelled and thirteen plots were made, each with a separate water chamber. The plaintiffs sought appointment of a commissioner to bring on record the factual position regarding the existence of plots and water chambers. The defendants objected, contending that a commissioner cannot be appointed for collecting evidence. The trial court allowed the application and appointed Advocate Shri A.S. Kale as commissioner. The defendants challenged this order in the High Court under Article 227 of the Constitution. The High Court held that the appointment of a commissioner for the purpose of collecting evidence is impermissible under Order XXVI Rule 9 of the Code of Civil Procedure, 1908. The court noted that the commissioner's role is to elucidate matters in dispute, not to gather evidence for a party. Since the plaintiffs sought the commissioner to ascertain facts that were already pleaded and would be subject to proof at trial, the appointment was for collecting evidence. The High Court set aside the trial court's order and allowed the writ petition.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order XXVI Rule 9 CPC - Purpose of Commissioner - The court held that a Commissioner cannot be appointed for the purpose of collecting evidence. The appointment must be to elucidate the matter in dispute, not to gather evidence for a party. The trial court's order appointing a commissioner to ascertain whether plots and water chambers exist was set aside as it amounted to collecting evidence. (Paras 5-8)
Issue of Consideration
Whether a Court Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 for the purpose of collecting evidence to be used by a party in a civil suit.
Final Decision
The High Court allowed the writ petition and set aside the order dated 17 January 2017 passed by the 8th Joint Civil Judge, Junior Division, Karad, below Exhibit-41 in Regular Civil Suit No.231 of 2016.
Law Points
- Court Commissioner cannot be appointed for collecting evidence
- Appointment of Commissioner under Order XXVI Rule 9 CPC is for elucidating matter in dispute
- not for gathering evidence
- Trial court exceeded jurisdiction by appointing commissioner to ascertain factual position for evidence purposes
Case Details
Writ Petition No.1196 of 2017
Dr. Shalini Phansalkar-Joshi, J.
Mr. Kalpesh U. Patil for the Petitioners, Mr. Anand S. Shalgaonkar for the Respondents
Dhondiram Nivrutti Pawar (Since Deceased) Through LRs: Dhanaji Dhondiram Pawar, Sambhaji Dhondiram Pawar, Bapurao Bhiku Pawar
Laxman Khashaba Pawar, Ganapati Rajaram Pawar, Ramchandra Vithoba Pawar, Suman Ganpat Pawar
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Nature of Litigation
Civil Writ Petition challenging trial court order appointing Court Commissioner
Remedy Sought
Petitioners (defendants) sought to quash the order dated 17 January 2017 passed by the 8th Joint Civil Judge, Junior Division, Karad, allowing application Exhibit-41 for appointment of Court Commissioner
Filing Reason
The trial court appointed a commissioner to inspect the suit property and report on whether plots and water chambers exist, which the petitioners contended was for collecting evidence and impermissible under law
Previous Decisions
The trial court allowed the application at Exhibit-41 and appointed Advocate Shri A.S. Kale as Court Commissioner
Issues
Whether a Court Commissioner can be appointed under Order XXVI Rule 9 CPC for the purpose of collecting evidence to be used by a party in a civil suit.
Submissions/Arguments
Petitioners (defendants) argued that the appointment of a Court Commissioner for collecting evidence is impermissible under Order XXVI Rule 9 CPC.
Respondents (plaintiffs) sought appointment to bring on record the factual position of the suit property regarding plots and water chambers.
Ratio Decidendi
A Court Commissioner cannot be appointed under Order XXVI Rule 9 CPC for the purpose of collecting evidence. The appointment must be to elucidate the matter in dispute, not to gather evidence for a party. The trial court exceeded its jurisdiction by appointing a commissioner to ascertain facts that were already pleaded and would be subject to proof at trial.
Judgment Excerpts
The application at 'Exhibit-41' was filed by the Respondents-Plaintiffs for appointment of 'Court Commissioner', in order to bring on record the factual position of the suit property; as to whether the plots are already made in the suit land and whether each plot is having a separate water chamber.
This order of the Trial Court is challenged in this Writ Petition by the Petitioners and in my considered opinion, rightly so for the following reason.
Procedural History
The respondents filed Regular Civil Suit No.231 of 2016 for injunction. They filed application Exhibit-41 for appointment of Court Commissioner. The trial court allowed the application on 17 January 2017. The petitioners challenged this order by filing Writ Petition No.1196 of 2017 under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXVI Rule 9
- Constitution of India: Article 227
