Case Note & Summary
The case arises from a civil revision petition filed by the defendants 2 and 5 in a partition suit (O.S.No.53 of 2022) pending before the Additional District Court, Mayiladuthurai. The plaintiffs sought partition of two suit items, claiming that the properties originally belonged to Radhalakshmi, who executed a settlement deed in favor of her husband Subbiah Naidu. Subbiah Naidu executed a Will creating a life interest for his wife and vested remainder to his three sons. After the death of the life holder, the plaintiffs claimed that one son was missing and deemed civilly dead, and thus the plaintiffs were entitled to shares. The defendants opposed the suit, and during the pendency, the plaintiffs filed I.A.No.1 of 2022 seeking appointment of an Advocate Commissioner to inspect the suit property and submit a report. The Trial Court allowed the application by a brief order dated February 16, 2023, without recording any reasons and without considering the defendants' objections. The defendants challenged this order under Article 227 of the Constitution. The High Court examined the scope of Order 26 Rule 9 CPC and held that the appointment of a Commissioner before passing a preliminary decree is impermissible as it would amount to collecting evidence. The court emphasized that the Trial Court must apply its mind and record reasons for such appointment. The High Court set aside the impugned order and remanded the matter to the Trial Court for fresh consideration, directing the Trial Court to pass a reasoned order after hearing both sides.
Headnote
A) Civil Procedure Code - Appointment of Advocate Commissioner - Order 26 Rule 9 CPC - The Trial Court appointed an Advocate Commissioner to inspect the suit property and submit a report, but failed to record any reasons or consider the objections raised by the defendants. The High Court held that such an order is passed without application of mind and is liable to be set aside. (Paras 6-10) B) Civil Procedure Code - Preliminary Decree vs Final Decree - Order 26 Rule 9 CPC - In a suit for partition, after a preliminary decree is passed, the court may appoint a Commissioner to suggest a mode of partition. However, before passing a preliminary decree, the court cannot appoint a Commissioner to collect evidence regarding the nature and possession of the property. The Trial Court's order was premature and without jurisdiction. (Paras 7-9) C) Civil Procedure Code - Recording of Reasons - Order 26 Rule 10(2) CPC - The court must record reasons for appointing a Commissioner. The Trial Court's order did not contain any reasons and was passed mechanically. The High Court set aside the order and remanded the matter for fresh consideration. (Paras 8-10)
Issue of Consideration
Whether the Trial Court's order appointing an Advocate Commissioner to inspect the suit property and submit a report, without recording reasons and without considering the objections of the defendants, is sustainable in law?
Final Decision
The High Court allowed the Civil Revision Petition, set aside the impugned order dated February 16, 2023 passed by the Additional District Court, Mayiladuthurai in I.A.No.1 of 2022 in O.S.No.53 of 2022, and remanded the matter to the Trial Court for fresh consideration. The Trial Court was directed to pass a reasoned order after hearing both sides, in accordance with law. No order as to costs. Consequently, the connected miscellaneous petition was closed.
Law Points
- Order 26 Rule 9 CPC
- Order 26 Rule 10(2) CPC
- Article 227 of the Constitution of India
- 1950
- Advocate Commissioner appointment
- partition suit
- preliminary decree
- final decree
- application of mind
- recording of reasons
- civil revision petition
