Case Note & Summary
The petitioner, Smt. Roshanbi, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 28/07/2012 passed by the III Additional Civil Judge and JMFC, Belgaum on I.A.No.9 in O.S.No.622/2008. The trial court had rejected the petitioner's application for appointment of a commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (CPC) to inspect the suit property and submit a report. The petitioner also challenged the order dated 18/04/2011 and office report dated 16/06/2011 produced at Annexure-C. The respondents included the original plaintiffs and other defendants in the suit. The High Court, after hearing the counsel for the petitioner and the respondents, observed that the trial court had exercised its discretion in rejecting the application for appointment of a commissioner. The court noted that the petitioner had not made out a case for appointment of a commissioner at that stage. The High Court held that the order of the trial court did not suffer from any jurisdictional error or illegality warranting interference under Articles 226 and 227 of the Constitution. Accordingly, the writ petitions were dismissed. The court did not find any merit in the petitions and upheld the trial court's order.
Headnote
A) Civil Procedure Code - Appointment of Commissioner - Order 26 Rule 9 CPC - The petitioner sought appointment of a commissioner to inspect the suit property and submit a report. The trial court rejected the application holding that the petitioner had not made out a case for appointment of a commissioner at that stage. The High Court found no jurisdictional error in the order and dismissed the writ petition. (Paras 1-4)
B) Constitutional Law - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - The High Court held that interference under Articles 226 and 227 is limited to cases where the subordinate court has acted without jurisdiction or in excess of jurisdiction or has committed a grave error of law. In the present case, the trial court's order was a discretionary order and did not warrant interference. (Paras 1-4)
Issue of Consideration
Whether the trial court's order rejecting an application for appointment of a commissioner under Order 26 Rule 9 CPC suffers from any jurisdictional error warranting interference under Articles 226 and 227 of the Constitution of India.
Final Decision
The High Court dismissed both writ petitions, upholding the trial court's order rejecting I.A.No.9 for appointment of commissioner. No order as to costs.
Law Points
- Order 26 Rule 9 CPC
- Section 151 CPC
- Order 18 Rule 17 CPC
- Article 226
- Article 227
Case Details
2014 LawText (KAR) (06) 18
Writ Petition No.66688/2012 (GM-CPC) and Writ Petition No.71919/2012 (GM-CPC)
Sri. M G Naganuri for petitioner; Sri. Vitthal S Teli for respondents 8-10
Smt. Azamatuniss and others
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Nature of Litigation
Civil writ petition challenging trial court's order rejecting application for appointment of commissioner under Order 26 Rule 9 CPC.
Remedy Sought
Quashing of orders dated 18/04/2011, 16/06/2011, and 28/07/2012 passed by the III Additional Civil Judge and JMFC, Belgaum in O.S.No.622/2008.
Filing Reason
The petitioner's application for appointment of a commissioner to inspect the suit property was rejected by the trial court.
Previous Decisions
The trial court passed the impugned order on I.A.No.9 on 28/07/2012 rejecting the application for appointment of commissioner.
Issues
Whether the trial court's order rejecting the application for appointment of commissioner under Order 26 Rule 9 CPC suffers from any jurisdictional error?
Whether the High Court should interfere with the discretionary order of the trial court under Articles 226 and 227 of the Constitution?
Submissions/Arguments
The petitioner argued that the appointment of a commissioner was necessary to inspect the suit property and submit a report to assist the court.
The respondents opposed the application, contending that the petitioner had not made out a case for appointment of a commissioner at that stage.
Ratio Decidendi
The trial court's discretionary order rejecting an application for appointment of a commissioner under Order 26 Rule 9 CPC does not warrant interference under Articles 226 and 227 of the Constitution unless it suffers from a jurisdictional error or grave illegality. In this case, the trial court's order was a valid exercise of discretion and did not call for interference.
Judgment Excerpts
The trial court has rejected the application for appointment of commissioner holding that the petitioner has not made out a case for appointment of commissioner at that stage.
The order of the trial court does not suffer from any jurisdictional error or illegality warranting interference under Articles 226 and 227 of the Constitution of India.
Procedural History
The petitioner filed I.A.No.9 in O.S.No.622/2008 before the III Additional Civil Judge and JMFC, Belgaum seeking appointment of a commissioner. The trial court rejected the application on 28/07/2012. The petitioner then filed the present writ petitions under Articles 226 and 227 of the Constitution challenging the said order along with earlier orders dated 18/04/2011 and 16/06/2011.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 26 Rule 9, Section 151, Order 18 Rule 17
- Constitution of India: Articles 226, 227
