2008 (10) TMI 714 - HC - Indian Laws

Summary

Issues Involved:
1. Deletion of Respondent Nos. 2 and 3.
2. Grant of Temporary Injunction.
3. Appointment of Court Commissioner.
4. Interpretation and Application of Civil Procedural Law.

Summary:

1. Deletion of Respondent Nos. 2 and 3:
The petitioner sought leave to delete respondent Nos. 2 and 3 from the writ petition, as respondent No. 1 was appearing on caveat. The court granted the leave and ordered the deletion to be carried out forthwith.

2. Grant of Temporary Injunction:
The petitioner, as the plaintiff in RCS No. 182 of 2007, filed a suit for declaration and perpetual injunction. The trial court allowed the application for temporary injunction on 31.12.2007, restraining defendants from interfering with the plaintiff's possession of the suit property until the decision of the suit.

3. Appointment of Court Commissioner:
The defendants challenged the temporary injunction order by filing Misc. Civil Appeal No. 4 of 2008. The appellate court initially appointed a Court Commissioner u/s 151 of CPC, which was quashed by the High Court in Writ Petition No. 488 of 2008. Subsequently, the defendants filed an application u/s Order XXVI Rule 9 of CPC, which was allowed by the first appellate court. The High Court found that the order appointing the Commissioner was not in consonance with Order XXXIX Rule 7 of CPC and quashed it, stating that the matter required evidence from the parties rather than a court-appointed investigation.

4. Interpretation and Application of Civil Procedural Law:
The judgment elaborated on the importance of civil procedural law, emphasizing that it is a necessary legal and social instrument for attaining justice. The court discussed the provisions of Section 75 and Order XXVI Rule 9 of CPC, highlighting that the appointment of a Commissioner should be for elucidating any matter in dispute or ascertaining the market value of any property. The court also noted that the application for the appointment of a Commissioner should be treated with judicial discretion and not be used to collect evidence that can be presented in court.

Conclusion:
The High Court quashed the order of the first appellate court appointing a Commissioner, stating that the issue at hand required evidence from the parties and not a court-appointed investigation. The court directed the lower appellate court to decide and dispose of Misc. Civil Appeal No. 4 of 2008 expeditiously, ensuring that temporary injunction applications are considered promptly as per Order XXXIX Rule 1 and 2 of CPC. The writ petition was allowed, and the rule was made absolute with no order as to costs.