Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of trial judge whereby petitioners application, under Order XXXIX Rule 7 and XXVI Rule 9 &10 read with Section 151 CPC, for the appointment of the commissioner was rejected.
The main issue that arose before the High Court was whether the trial judge was correct in rejecting petitioners application for appointment of commissioner.
The Court observed that the suit in question was filed by the petitioner in the lower court for declaration of title and possession since the circle officer issued a notice to the petitioner, directing him to remove encroachment over 3 decimals land. The petitioner was evicted from his house and the main gate was sealed by the respondent authorities. Considering all these facts and circumstances it was necessary to appoint a pleader commissioner for elucidating the real truth.
The High Court held that the trial court had erred in rejecting petitioners application. Order XXXIX Rule 7 of CPC provides for inspection of any property which is the subject matter of the suit and for this purpose the Court may authorise any person to enter upon or into any land or building in the possession of any other party to the suit. Order XXVI Rule 9 also provides that for elucidating any matter in dispute if the Court deems a local investigation necessary it may appoint a Commission and seek report. Rule 10 to Order XXVI CPC lays down the procedure which a Commissioner appointed under Rule 9 shall follow. This procedure given under CPC shall be utilized where inspection becomes integral in order to adjudicate a factual dispute in a just and fair manner. The Court further held that it was an appropriate case for appointment of pleader commissioner and hence the order of the trial judge was set aside.[Jadu Mahato v. State of Jharkhand,2018 SCC OnLine Jhar 1351, order dated 27-09-2018]
Correct decision of the higher court ,.Remember that the lower court ought not have done such an error . Lower court didn’t apply it’s mind on even such a basic lesson .