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SANDEEP V. MARNE
Shantaram Dattatray Kekan – Appellant
Versus
Bhausaheb Karbhari Kekan – Respondent
JUDGMENT :
1. Rule. Rule is made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at the admission stage.
2. Issue that arises for consideration in the present petition is whether a Court Commissioner for measurement of land under the provisions of Section 75 r/w Order 26 Rule 9 of the Code of Civil Procedure, 1908 can be appointed even before a trial in the suit commences or whether such an appointment can be made only after adducing of evidence by both the parties. The issue arises essentially on account of divergence of views expressed by this Court in several of its decisions.
3. The power of Court to appoint Court Commissioner is traceable to Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (‘the Code’) which read thus:
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
[(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pe
The discretion of appointing an Advocate Commissioner under CPC does not equate to gathering evidence; it serves to resolve disputes of property boundaries effectively.
The main legal point established in the judgment is that a Court Commissioner cannot be appointed to enable parties to collect evidence, and the burden of proving encroachment rests on the party alle....
(1) Court is empowered to appoint another Court Commissioner and there is no question of attracting principle of res judicata.(2) Production of additional evidence – Appellate Court can even direct e....
The court established that the appointment of a commissioner under Order XXVI Rule 9 of the CPC is not to be used as a means to collect evidence after the closure of proceedings, and such application....
Court Commissioner for land measurement under CPC not appointable before plaintiff's evidence in encroachment suit on alleged government acquired land when dispute is acquisition status per prior dec....
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