Case Note & Summary
The case involves a challenge by the Petitioners (defendants in the suit) against an order of the 6th Joint Civil Judge, Junior Division, Karad, dated 28th November 2017, allowing an application at Exhibit-39 filed by the Respondents (plaintiffs) for appointment of the Taluka Inspector of Land Records (T.I.L.R.) as a Court Commissioner. The Commissioner was directed to measure the suit properties bearing Gat Nos.34 and 197 and to inspect and report on the existence of a house, bio-gas, toilet, open space, agricultural land, two water chambers, pipeline, and mango and coconut trees. The Petitioners opposed the application, arguing that the Respondents were trying to collect evidence through the Commissioner and that the suit land had already been measured by the T.I.L.R. The Trial Court, after hearing both sides, allowed the application, holding that the appointment would help determine the real controversy between the parties and was necessary to elucidate the real dispute. The Petitioners then filed a Writ Petition under Article 227 of the Constitution of India before the Bombay High Court. The High Court, after considering the submissions, held that the Trial Court's order was not perverse or suffering from any jurisdictional error. The Court noted that the appointment of a Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 is permissible for local investigation to elucidate matters in dispute. The High Court found that the Trial Court had correctly applied its mind and that the appointment was for ascertaining the factual position, not for collecting evidence. Consequently, the High Court dismissed the Writ Petition, upholding the Trial Court's order.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Local Investigation - The Trial Court appointed T.I.L.R. as Court Commissioner to measure and inspect suit properties bearing Gat Nos.34 and 197 and to report on existence of house, bio-gas, toilet, open space, agricultural land, water chambers, pipeline, trees etc. - The Petitioners opposed contending it was for collecting evidence - The Trial Court held that appointment would help determine real controversy and elucidate the dispute - The High Court upheld the order, finding no jurisdictional error or perversity - Held that the appointment was for local investigation to ascertain factual position, not for collecting evidence (Paras 1-6).
Issue of Consideration
Whether the Trial Court's order appointing a Court Commissioner (T.I.L.R.) to measure and inspect the suit property is valid and does not amount to collecting evidence.
Final Decision
The High Court dismissed the Writ Petition, upholding the Trial Court's order dated 28th November 2017 appointing T.I.L.R. as Court Commissioner to measure and inspect the suit properties.
Law Points
- Appointment of Court Commissioner under Order 26 Rule 9 CPC is permissible for local investigation to elucidate matters in dispute
- Appointment of Commissioner is not for collecting evidence but for ascertaining factual position
- High Court's interference under Article 227 is limited to cases of jurisdictional error or perversity
