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NITIN W. SAMBRE
Malappa Bhikappa Biradar – Appellant
Versus
Aamsidha Bhikappa Biradar – Respondent
JUDGMENT
1. This Petition is by Defendant to R.C.S. No. 563/2019. Respondent-Plaintiff took out aforesaid Suit thereby questioning the order of the Mamlatdar passed under Sec. 5 seeking declaration that the same is not binding. Further injunction is sought in relation to use of a way and also mandatory injunction to re-fix electric gadgets with other ancillary reliefs.
2. Vide impugned order dtd. 13/09/2019, the Trial Court under Exhibit 19, in exercise of powers under Order XXVI Rule 9 of Code of Civil Procedure, 1908, appointed Court Commissioner with following directions:
"01. Application is allowed for following purpose. a) The court commissioner is appointed for inspection of suit property and disclosing correct situation appears in the suit property 1A with detail map
b) The Court commissioner shall inspect the suit property and the drip irrigation, pipeline situated therein and show existing situation and directions thereof on the spot with detail map.
2) The plaintiff to pay charges of commission work.
3) The parties shall suggest name of commissioner, who would carry out commission work as per order of court.
4) Parties shall take note thereof.
5) Issue letter accordingly."
The Trial Court has the power to appoint a Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, to facilitate the adjudication of the claim brought before it by the rival ....
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The purpose of having a Court Commissioner is not to gather and collect evidence, and the application under Order 26 Rule 9 of the Civil Procedure Code must fulfill the legal requirements for appoint....
The court emphasized the provisions of Order XXVI Rule 9 of CPC, highlighting the power of the court to appoint a Commissioner for local inspection if the report of the Commissioner is of assistance ....
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....
The appointment of a Commissioner under Order XXXIX Rule 7 of CPC is discretionary and not a matter of right; parties must prove their own case without court assistance in evidence collection.
Appointment of a Court Commissioner is permissible under CPC to collect evidence and assist in factual determination, and it should not be seen as merely collecting evidence.
The court clarified that the appointment of a Commissioner for local inspection in encroachment cases is permissible even before trial, reinforcing the report as vital evidence.
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