Gujarat HC Upholds Site Commissioner Appointment, Says Status-Quo Breach Plea Must Be Decided Without Influence From Earlier Observations

In brief

The question

1. Whether the Trial Court’s appointment of a Court Commissioner to ascertain the prevailing position at the disputed site warranted interference under Article 227

The court held

The Court declined to interfere with the impugned order and dismissed the petition without costs.

It also directed

It directed the Trial Court to decide the pending application under Order XXXIX Rule 2A CPC on its own merits, uninfluenced by the observations in the impugned order, and to take the petitioners’ affidavit into account.

01Facts

The respondents-plaintiffs alleged breach of a status quo order and filed an application under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908.

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The Trial Court appointed a Court Commissioner to ascertain the position at the disputed site; the petitioners-defendants challenged that order under Article 227, contending that the appointment followed their failure to file an affidavit and that the Trial Court’s observations could prejudice the Rule 2A proceedings.

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They informed the High Court that they had since filed the affidavit required by an earlier order of the Trial Court.

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02Issues

i.1. Whether the Trial Court’s appointment of a Court Commissioner to ascertain the prevailing position at the disputed site warranted interference under Article 227

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ii.2. Whether the petitioners’ affidavit and their concern about the Trial Court’s observations required directions concerning adjudication of the pending application under Order XXXIX Rule 2A CPC

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03Law Applied

Article 227 of the Constitution of India provides the basis for the High Court’s supervisory jurisdiction over subordinate courts.

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Order XXXIX Rule 2A CPC concerns proceedings alleging breach of an injunction or order under Order XXXIX.

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The Court held that the Trial Court’s appointment of a Court Commissioner to ascertain the prevailing situation and bring the facts on record disclosed no fault; however, the pending Rule 2A application must be decided on its own merits, uninfluenced by observations in the order appointing the Commissioner, and the petitioners’ subsequently filed affidavit must be considered.

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04Reasoning

The High Court considered the Commissioner’s appointment to be directed at ascertaining the actual position at the site in light of the plaintiffs’ allegation of breach of the status quo order.

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It therefore found no basis to disturb the impugned order.

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It addressed the petitioners’ concern by clarifying that the Trial Court must independently decide the Rule 2A application, without being influenced by its observations in the impugned order, and must take account of the affidavit the petitioners had since filed.

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