Case Note & Summary
The petitioners, who were defendants in a final decree proceeding (FDP No. 2/08) before the Principal Civil Judge, Bijapur, challenged an interim order dated 15.12.2012 passed on I.A. No. 4 filed under Order 26 Rules 9 and 14 of the Code of Civil Procedure, 1908 (CPC). The trial court had appointed a commissioner for partition without issuing notice to the defendants. The petitioners argued that this was illegal and violative of natural justice. The High Court, in its order dated 14.02.2013, agreed with the petitioners, holding that the appointment of a commissioner without notice to the defendants is not permissible under law. The court emphasized that in final decree proceedings, the appointment of a commissioner is a serious matter that affects the rights of the parties, and therefore, notice must be given to all parties before such appointment. Consequently, the High Court allowed the writ petition, quashed the impugned order, and directed the trial court to hear the parties afresh before appointing a commissioner.
Headnote
A) Civil Procedure - Commissioner Appointment - Notice Requirement - Order 26 Rule 9, Code of Civil Procedure, 1908 - The trial court appointed a commissioner for partition without notice to the defendants, who were the petitioners. The High Court held that such appointment without notice is illegal and contrary to the principles of natural justice, as the defendants have a right to be heard before any commissioner is appointed. (Para 5) B) Civil Procedure - Final Decree Proceedings - Commissioner's Report - Order 26 Rule 9, Code of Civil Procedure, 1908 - The court observed that in final decree proceedings, the appointment of a commissioner is a serious matter affecting the rights of parties, and therefore, notice must be given to all parties before such appointment. The impugned order was set aside. (Para 5)
Issue of Consideration
Whether the trial court could appoint a commissioner under Order 26 Rule 9 CPC without issuing notice to the defendants in a final decree proceeding.
Final Decision
The writ petition is allowed. The impugned order dated 15.12.2012 passed on I.A. No. 4 in FDP No. 2/08 is quashed. The trial court is directed to hear the parties afresh before appointing a commissioner.
Law Points
- Order 26 Rule 9 CPC
- Notice to parties
- Commissioner appointment
- Final decree proceedings
- Natural justice
