The appointment of a Court Commissioner under Order 26 Rule 9 of the CPC is justified to ascertain construction claims, balancing discretion with the need for technical assessment in legal disputes.

ORDER :

M.NAGAPRASANNA, J.

Petitioners in both these cases are common, they are defendants 1, 2, 3 and 4 in Commercial O.S.No.119 of 2021. The petitions call in question an order of the concerned Court allowing the application I.A.No.20 filed under Order 26 Rule 9 r/w Section 75 of the CPC regarding appointment of Court Commissioner and dismissing the application filed by defendants 1 to 4 filed in I.A.No.22 seeking modification of the order appointing the Tahsildar as Court Commissioner.

2. Heard Sri Seenappa K., learned counsel for petitioners in W.P.No.25227 of 2025 and Sri C S Vinod, learned counsel for petitioners in W.P.No.21514 of 2025 and Sri Piyush Kumar Jain D, learned counsel appearing for respondent No.1 in both the petitions.

3. Facts in brief, germane, are as follows:

3.1. On 16-12-2015, the petitioners/defendants 1 to 4 have entered into a Joint Development Agreement for construction of a warehouse in the suit property. The issue is not with regard to the nuances of the Joint Development Agreement. Dispute arose between the plaintiffs and the defendants. Accordingly, the 1^st respondent institutes a suit in O.S.No.1118 of 2021 seeking damages including Rs.16.50 crores towards construction of front warehouse, against the defendants and other respondents. The suit was transferred to the Commercial Court and renumbered as Commercial O.S.No.119 of 2021. On 30-01-2020, defendants 1 to 4 filed their written statements denying the claims of the plaintiffs. Issues were framed on 20-12-2021. Evidence is adduced thereafter.

3.2. An application under Order 26 Rule 9 of the CPC in I.A.No.15 comes to be filed by the 1^st respondent before the concerned Court seeking appointment of the Court Commissioner. The said application had been rejected by the concerned Court, the rejection of which was challenged before this Court in W.P.27706 of 2024. The said writ petition comes to be disposed on 20-06-2025. A memo was moved for ‘being spoken to’ on the score that the Assistant Director of Land Records was directed to assess the value of construction of the warehouse which appears to be erroneous. Therefore, the correction was that the application had to be allowed, only insofar as ascertaining the existence of construction of Kaaludaari. The order passed by this Court in W.P.27706 of 2024 is as follows:

“ ……. ……. ……

7. The afore-narrated facts are not in dispute. The issue relates to an application filed under Order XXVI Rule 9 of the CPC seeking appointment of the Court Commissioner to ascertain construction put up in the suit schedule property. The petitioner is the plaintiff has instituted a suit in the aforesaid Commercial OS seeking recovery of money and compensation in respect of the suit schedule property. Therefore, the dispute revolves around money. Money is in the form of rent and if rent has to be ascertained, the dispute is with regard to whether there is a Kaalu Dhari or not is necessary to be noticed. In that light, I deem it appropriate to notice the application so filed by the petitioner, it reads as follows:

"1. I state that I have filed the present suit seeking the reliefs of recovery of money and compensation.

2. I state that the suit said involves money relating to costs of construction and further compensation in respect of my share wherein it is impossible to construct because of the existence of Kalu Dari, and further rents received by the Defendants which is rightfully my share.

3. I state that the Defendants have denied my claims in respect of the value of the cost of construction and existence of construction on the Kalu Dari.

4. I state that Defendant No.1 for the first time during his cross examin