Appointment of court commissioner
basavaraj shiromani
(Querist) 29 October 2011
This query is : Resolved
Plaintiff filed a suit for declaration and injunction seeking the relief of an easementary rights over the way wherein he filed an application for TI also. At this stage he filed another application for appointment of a court commissioner u/o 26 rule 9 of cpc for local investigation to see the factum of position of the suit property that too, to decide IA No:1 filed for TI. My questions are 1) Whether the application is maintainable as the court can not deligate its power. 2) Whether the court commissioner can be appointed to see the position of the suit property to decided I.A.No: I which is filed for TI ?
prabhakar singh
(Expert) 29 October 2011
TI is not an universal term hence first explain it further before seeking any advise
in particular from me at least.
basavaraj shiromani
(Querist) 30 October 2011
Thank you very much for your advise Prabhakarsingjee. TI is for a temporary injunction and please read it with my question.
prabhakar singh
(Expert) 30 October 2011
yes! The Application is maintainable. In
The Civil Procedure Code, 1908, Order 26 Rule 9 Local Commissioner CAN BE APPOINTED To report about actual and factual position of the land in dispute.
But That Does not mean that Local Commissioner is to opine as to who is in possession ? Local Commissioner has only to report what he would see on the spot!After obtaining the report, it is court to form its own opinion.
J K Agrawal
(Expert) 30 October 2011
and further the Local Commissioner can not decide TI application. ( I do not know what do you mean to IA and further why people do not use easy language easy enough to understand by less intelligent persons ?)
M V Gupta
(Expert) 31 October 2011
I would like to point out that as Lawyers we should be able to decifer that TI means Temporary Injunction and IA means Interlocutory Application. The expression Local Commissioner is not correct. It should be Court Commissioner.The court commissioner can also report on the question of possession of the property as observed by him. There is no restriction or prohibition on the power of the Commissioner in this regard. In fact the Commissions are appointed by the Court to have first hand information on certain issues involved in the case.
basavaraj shiromani
(Querist) 31 October 2011
I am sorry my dear friends, I wanted to clear my doubt regarding an appointment of court commissioner in a case as I have already pointed out. How the court can collect evidence to decide an interlocutory application which is asking for preventive orders u/o 39 r-1 and 2 ? Basically the plaitniff filed an application against the defendant for not to obstruct his easementary right of way which is yet to be decided by evidence. The plaintiff again filed another application for the appointment of a court commission for the investigation in order to decided interlocutory application for temporary injunction. Is it permissible under law ? are there any citations to this effect ?
dev kapoor
(Expert) 01 November 2011
Hi all !
Much has been said by Xperts elaborately.But I like to add that Local Commissioner or Court Commissioner(?) does not act like a court & his findings are not decisive but only an aid to appreciate the evidence led by the parties.The idea is to get some 'impartial but factual-on-the-spot' position where the the evidence of both the parties is so intrinsically messed up that it is difficult for the court to reach a clear decision.His report is merely of the nature of 'opinion' & nothing else,not binding on the Court that by all means it should treat the report of LC as a gospel truth & base decision on the same.So no prejudices may be conceived against the court on account of appointment of LC.
M V Gupta
(Expert) 02 November 2011
Mr. Kapoor's comments further clarifies the nature of the court commissions report. I fully endorse the views of Mr. Kapoor.
