Case Note & Summary
The petitioner, Sri Shivanna, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 17.02.2022 passed by the I Additional Civil Judge and JMFC, Nanjangud (Trial Court) in O.S.No.690/2013. The respondents/plaintiffs had filed a suit for partition and separate possession of suit schedule properties. During the pendency of the suit, the respondents filed an application under Order 26 Rule 10 of the Code of Civil Procedure, 1908 (CPC) read with Section 45 of the Evidence Act, 1872 seeking appointment of a Court Commissioner to inspect the suit property and submit a report. The Trial Court allowed the application without recording its satisfaction that such appointment was necessary for a just decision of the suit. The petitioner contended that the Trial Court had not applied its mind and had mechanically allowed the application. The High Court examined the scope of Order 26 Rule 10 CPC and held that the power to appoint a Commissioner is discretionary and must be exercised judiciously. The court must record its satisfaction that the appointment is necessary for a just decision of the suit. Since the Trial Court failed to do so, the impugned order was quashed and the matter was remitted back to the Trial Court for fresh consideration in accordance with law. The High Court directed the Trial Court to pass a fresh order after hearing both parties and recording reasons.
Headnote
A) Civil Procedure Code - Appointment of Commissioner - Order 26 Rule 10 CPC - Necessity for Just Decision - The Trial Court allowed an application for appointment of a Court Commissioner in a partition suit without recording its satisfaction that such appointment was necessary for a just decision of the suit. The High Court held that the power under Order 26 Rule 10 CPC must be exercised judiciously and only when the court is satisfied that the appointment is necessary for a just decision. The impugned order was quashed and the matter remitted for fresh consideration. (Paras 1-10) B) Evidence Act - Expert Evidence - Section 45 Evidence Act, 1872 - Appointment of Commissioner - The application was filed under Order 26 Rule 10 CPC read with Section 45 of the Evidence Act, 1872 for appointment of a Court Commissioner to inspect the suit property and submit a report. The High Court noted that the Trial Court did not consider the necessity of such appointment in the context of the issues involved. (Paras 2-8)
Issue of Consideration
Whether the Trial Court was justified in allowing an application under Order 26 Rule 10 CPC read with Section 45 of the Evidence Act, 1872 for appointment of a Court Commissioner without recording its satisfaction that such appointment was necessary for a just decision of the suit.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 17.02.2022 passed by the I Additional Civil Judge and JMFC, Nanjangud in O.S.No.690/2013, and remitted the matter back to the Trial Court for fresh consideration in accordance with law. The Trial Court was directed to pass a fresh order after hearing both parties and recording reasons.
Law Points
- Order 26 Rule 10 CPC
- Section 45 Evidence Act
- 1872
- Appointment of Commissioner
- Partition Suit
- Just Decision
- Recording of Satisfaction
