Madras HC Sets Aside Late Commissioner Appointment In Title Suit After Plaintiff Sought To Identify Property Outside Plaint Schedule

In brief

The question

1. Whether the trial court was justified in appointing an advocate commissioner under Order XXVI Rule 9 CPC at the final-hearing stage to identify property described in the application, where its description differed from the plaint schedule.

The court held

The Court allowed the civil revision petition and set aside the order allowing the commission application.

It also directed

It directed the trial court to decide the suit on the oral and documentary evidence already adduced and to dispose of it on the merits.

No costs were ordered; the connected miscellaneous petition was closed.

01Facts

The respondent/plaintiff sued for declaration of title to, and recovery of possession of, a property described in the plaint schedule

p. 3

After both sides had adduced evidence and the suit had reached final hearing, the plaintiff applied under Order XXVI Rule 9 of the Code of Civil Procedure (CPC) for an advocate commissioner, assisted by a surveyor, to identify property described in A, B and C schedules in the application

pp. 4–6

The application’s property descriptions differed from the plaint schedule; the trial court nevertheless allowed the application to facilitate identification of the property

pp. 6–7

The defendants challenged that order under Article 227 of the Constitution of India

p. 2

02Issues

i.1. Whether the trial court was justified in appointing an advocate commissioner under Order XXVI Rule 9 CPC at the final-hearing stage to identify property described in the application, where its description differed from the plaint schedule.

pp. 6–7

ii.2. Whether the commission application was an impermissible attempt to gather evidence concerning property not described in the plaint.

p. 7

03Law Applied

The application was made under Order XXVI Rule 9 CPC, which provides for the appointment of a commissioner for local investigation.

p. 3

The Court’s reasoning proceeded on the principle that a commission should not be used to gather evidence for a party, and that a court deciding a declaration-of-title claim must determine title to the identifiable property described in the plaint.

p. 7

The Court exercised its supervisory jurisdiction under Article 227 of the Constitution to set aside the trial court’s order.

p. 2

04Reasoning

The Court noted that the plaint identified the property for which declaration and possession were sought, while the later application introduced A, B and C schedule descriptions that were “completely in variance” with the plaint schedule.

pp. 6–7

Because the application was filed after evidence had been led and when the suit was at final hearing, and sought identification of a different property description, the Court considered it an attempt to gather evidence rather than a proper aid to adjudication.

p. 7

It held that the trial court had allowed the application mechanically and that its order was perverse.

p. 7