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In the High Court of Bombay at Aurangabad
RAVINDRA V. GHUGE, J.
Kalyan Santram Kawade & Others
Versus
Khanderao alias Khandu Ganpati Kawade & Others
Writ Petition No. 3600 of 2014
Decided On : 20-08-2014
Court Commissioner - Challenge to Interlocutory Order - Order 26 Rule 9 of C.P.C. - Summary of Acts and Sections: Order 26 Rule 9 of the Code of Civil Procedure (C.P.C.) - The court discussed the discretionary power of appointing a Court Commissioner under Order 26 Rule 9 of the C.P.C. and the limitations on the same. It referred to various judgments to establish the principles governing the appointment of a Court Commissioner and the circumstances under which such appointments can be made. The court emphasized the need for judicious exercise of discretion and the importance of not appointing a Court Commissioner for the purpose of collecting evidence.
Fact of the Case:
The petitioners challenged an interlocutory order passed by the Trial Court, which appointed a Court Commissioner for the purpose of assisting in the adjudication of the matter by submitting a report along with a map pertaining to the suit property.
Finding of the Court:
The Court found that the impugned order did not lead to the collection of evidence and that the Trial Court had not directed the Court Commissioner to go into the disputed questions or contentious issues. It concluded that the appointment of the Court Commissioner was within the discretionary power of the Trial Court and did not warrant interference.
Issues: The main issue was whether the Trial Court's appointment of a Court Commissioner under Order 26 Rule 9 of the C.P.C. was justified and whether it amounted to collecting evidence.
Ratio Decidendi: The Court emphasized the discretionary nature of appointing a Court Commissioner and the need for such appointments to be made judiciously. It highlighted the limitations on the power to appoint a Court Commissioner and the importance of not using such appointments for the purpose of collecting evidence.
Final Decision: The petition challenging the interlocutory order was dismissed, and the Rule was discharged with no order as to costs.
Certainly. Based on the provided legal document, the key points are as follows:
The appointment of a Court Commissioner under Order 26 Rule 9 of the Civil Procedure Code is a discretionary act by the Trial Court and must be exercised judiciously. It should not be used primarily as a means to collect evidence, especially before issues are framed or evidence is recorded (!) (!) .
The Court emphasized that the primary purpose of appointing a Court Commissioner is to assist in understanding the factual position of the property, such as providing maps or reports related to divisions and boundaries, rather than gathering evidence to prove contentious issues (!) .
The Court's role is to ensure that such discretionary powers are exercised properly, avoiding misuse for evidence collection, which can amount to overstepping jurisdiction. The decision to appoint a Court Commissioner should be based on necessity and relevance, not as a shortcut to evidence gathering (!) (!) .
The Court found that in the case at hand, the order did not lead to the collection of evidence or delve into contentious issues, and the appointment was for factual clarification, which fell within the Court’s discretion. Therefore, interference was unwarranted (!) .
The Court highlighted that interference with such discretionary orders is only justified when a clear case of grave injustice or violation of principles of natural justice is demonstrated. Mere disagreement with the order or the possibility of alternative evidence does not warrant setting aside the order (!) .
The Court reiterated that its supervisory jurisdiction under Article 227 of the Constitution is limited to correcting jurisdictional errors or preventing grave injustices, not to re-evaluate factual findings or substitute its judgment for that of the Trial Court (!) (!) .
The Court clarified that errors of law which are apparent on the face of the record can be corrected through judicial review, but mere errors of fact or findings based on evidence cannot be challenged unless there is a manifest legal flaw (!) .
The Court emphasized the importance of exercising judicial restraint, intervening only when there is a clear, manifest error that causes grave injustice, and recognizing that the discretion to interfere should be guided by principles of justice and fairness (!) .
Ultimately, the Court dismissed the petition challenging the interlocutory order, affirming that the Trial Court’s exercise of discretion was proper and that the order did not warrant interference (!) .
These points collectively reaffirm that the appointment of a Court Commissioner is a discretionary judicial act that must be exercised carefully and for appropriate purposes, primarily to clarify factual aspects rather than to gather evidence, and that courts should exercise supervisory jurisdiction sparingly and only in cases of clear jurisdictional errors or grave injustice.
Ravindra V. Ghuge, J.
1. Heard the learned Advocates for the respective sides. Rule, Rule made returnable forthwith and heard finally.
2. The petitioners are challenging an interlocutory order dated 26/02/2014 below Exh. 18, passed by the Joint Civil Judge, J.D. Washi, District Osmanabad.
3. Contention of the petitioners is that the respondents have preferred RCS No. 268 of 2013 before the Trial Court, seeking a declaration of ownership and perpetual injunction in respect of land Survey No. 29/A admeasuring 2 Hectre 2R, Survey No. 30/A admeasuring 41R and Survey No. 29/E to the extent of 1/2 share admeasuring 44R. These claims alongwith other connected claims are set out in the claim petition of the respondents especially from paragraph Nos. 1 to 7. The petitioners have filed their reply/ written statement to the plaint. An application for temporary injunction and temporary relief is admittedly not pending on the file of the Trial Court.
4. The respondents moved an application below Exh. 18 seeking appointment of a Court Commissioner. According to the petitioners, the said application is a mere repetition of the avernments made in the plaint. It is pointed out that the said application is primarily based on an allegation of encroachment as well as divisions and sub divisions in the suit property as is set out in paragraph no. 7 of the plaint.
5. According to the petitioners, without framing of issues and without recording the oral evidence of the litigating parties, the Court Commissioner could not have been appointed. It is further submitted that the contentions of respondents in paragraph No. 7 of the plaint, which happen to be reproduced in the application Exh. 18 does not take the case of the respondents any further. When there are no specific pleadings as regards encroachment and when the respondents have specifically denied the allegations of the plaintiffs in their written statement, appointment of Court Commissioner amounts to the Trial Court overstepping its jurisdiction.
6. The petitioners have relied upon the reported as well as unreported judgments/orders of this Court in support of its case. The petitioners have prayed for quashing and setting aside of the impugned order since it amounts to collecting evidence.
7. Learned Advocate for the respondents submits that it has been specifically pleaded in the plaint that there are divisions and sub divisions in the suit property. Details of the same have been set out from paragraph No. 1 to 8 of the plaint. It is also mentioned in the plaint that the defendants are likely to cause an encroachment as well as obstruction to the original plaintiffs. Application for appointment of Court Commissioner was filed in view of the pleadings of the respondents in their plaint. Appointing a Court Commissioner is a discretionary relief and the Trial Court has properly exercised its discretion judiciously under Order 26 Rule 9 of the C.P.C. When the Trial Court finds that the Court Commissioner would assist in the adjudication of the matter by submitting his report alongwith a map, this Court should not interfere in its extraordinary jurisdiction, when discretionary order has been passed.
8. Learned Advocates for the respective sides have taken this Court through the petition paper book and especially the plaint and the written statement filed by the parties. It is not disputed that the proceedings before the Trial Court are at the stage of framing of issues.
9. Mr. Choukidar, learned Advocate for the petitioners has relied upon the judgment of this Court in the case of Sanjay Namdeo Khandare vs. Sahebrao Kachru Khandare and others, reported at 2001(1) Bom. C.R. 800. In the said case, a Court Commissioner was appointed and empowered to visit and inspect the spot being the suit field and to submit a report regarding the actual possession of the suit field. This was held to be amounting to collecting of evidence as regards the possession of the suit land. It is, in these cir
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