A Court Commissioner cannot be appointed in partition proceedings without notice to affected parties.

Respondent No. 1 obtained a preliminary decree for partition in O.S. No. 71/2022.

The Trial Court directed that final decree proceedings be initiated, and FDP No. 51/2024 was registered.

In that proceeding, respondent No. 1 applied under Order XXVI Rule 9 read with Section 151 CPC for appointment of commissioners to partition the suit properties.

The Trial Court allowed the applications on 12 September 2024 without issuing notice to the petitioner or the other defendants.

The petitioner challenged that order under Article 227 of the Constitution, contending both that the separate FDP procedure was contrary to Kattukandi Edathil Krishnan and that the commissioner applications were decided without notice.

1. Whether the Trial Court’s order appointing commissioners could stand when the petitioner was not given notice of the FDP proceedings or the applications for appointment.

2. Whether the petitioner was entitled to an opportunity to object to the applications and participate in the commissioner proceedings before orders were passed.

Order XXVI Rule 9 CPC provides for the appointment of a commissioner for local investigation, and Section 151 CPC preserves the court’s inherent powers.

The court applied the principles of natural justice, holding that notice and an opportunity to be heard are not mere procedural formalities where appointment of a commissioner may materially affect the parties’ rights; affected parties must have an opportunity to raise objections and provide instructions.

The petitioner also relied on Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737, regarding the registration of a separate final decree proceeding, but the High Court did not decide that contention.

The petitioner had received no notice of the FDP or of respondent No. 1’s commissioner applications.

As a result, he could not object to the applications, participate in the proceedings, or submit instructions to the commissioner.

Because the appointment could materially affect the parties’ rights, the absence of an opportunity to be heard caused prejudice and violated natural justice.

The High Court therefore addressed the notice-related challenge without determining whether registering a separate FDP was itself improper.

It remanded FDP No. 51/2024 for fresh consideration after notice was issued to all parties, including the petitioner.

The petitioner was permitted to file objections to the proceedings and the commissioner applications, and the Trial Court was directed to pass appropriate orders after considering them.