Case Note & Summary
The petitioner, Mallappa, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 02.03.2015 passed by the Senior Civil Judge & JMFC, Muddebihal, in O.S. No.73/2013. The petitioner was the plaintiff in a suit for specific performance of a contract. During the pendency of the suit, the plaintiff filed an interlocutory application (I.A. No.1) seeking appointment of a court commissioner to measure the suit property and identify the property described in the plaint schedule. The trial court rejected this application, leading to the present writ petition. The High Court, after hearing the parties, dismissed the petition. The court held that the appointment of a commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) is not intended for the purpose of collecting evidence to prove a party's case. The commissioner's role is limited to elucidating matters already in issue. In a suit for specific performance, the burden lies on the plaintiff to prove the identity of the suit property. The plaintiff cannot seek the court's assistance to discharge this burden by appointing a commissioner. The trial court's order was found to be correct and was upheld. The court also noted that the plaintiff had other remedies available, such as leading evidence or seeking amendment of the plaint, but the application for appointment of a commissioner was not maintainable.
Headnote
A) Civil Procedure Code - Appointment of Commissioner - Order 26 Rule 9 CPC - Purpose of Commissioner - The court held that the appointment of a commissioner under Order 26 Rule 9 CPC is not intended for collecting evidence to prove a party's case, but only for elucidating matters already in issue. The plaintiff's application for measurement of the suit property was rightly rejected as it sought to collect evidence to establish identity of the property, which is the plaintiff's burden to prove. (Paras 1-10) B) Specific Performance - Suit for Specific Performance - Identification of Property - In a suit for specific performance, the plaintiff must prove the identity of the suit property. The court cannot appoint a commissioner to assist the plaintiff in discharging this burden. The trial court's order rejecting the application was upheld. (Paras 1-10)
Issue of Consideration
Whether the trial court was justified in rejecting the plaintiff's application for appointment of a commissioner to measure the suit property and identify the property in the plaint schedule.
Final Decision
The writ petition is dismissed. The order dated 02.03.2015 passed by the Senior Civil Judge & JMFC, Muddebihal, on I.A. No.1 in O.S. No.73/2013 is upheld.
Law Points
- Order 26 Rule 9 CPC
- appointment of commissioner
- collection of evidence
- elucidation of matters in issue
- specific performance
- measurement of property
