Petition challenges rejection of commissioner appointment under Order 26 Rule 9 CPC; court observes appointment needed only if appeal undisableable on record, and sets disposal deadline.
Petition disposed with observation to appoint commissioner only if appeal cannot be decided on existing record; appeal disposal deadline: February 2019.
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C.M.P. No.1001 of 2018
09. 16.11.2018
This petition challenges the order dated 8.5.2018 passed by the learned Additional District Judge, Jagatsinghpur in R.F.A. No.47 of 2011, whereby and whereunder learned A.D.J. has rejected the application filed by the appellant under Order 26 Rule 9 C.P.C. holding inter alia that the previous application filed by the appellant for the self-same relief was rejected.
Learned counsel for the petitioner submits that the application under Order 26 Rule 9 C.P.C. was filed before the learned trial court. The suit having been dismissed, the plaintiff filed appeal. The dispute cannot be resolved without appointing a commissioner under Order 26 Rule 9 C.P.C.
The petition is disposed of with an observation that while deciding the appeal, if the learned Additional District Judge, Jagatsinghpur comes to a conclusion that it is not possible to decide the appeal on the available materials on record, then it may appoint a commissioner under Order 26 Rule 9 C.P.C. Learned A.D.J. shall dispose of the appeal by end of February, 2019.
BKB
2 issues framed by the court
Whether appointment of a commissioner under Order 26 Rule 9 CPC is necessary for appeal disposition when trial suit was dismissed?
Whether the impugned order rejecting re-application for commissioner appointment was sustainable?
1 provisions across 1 enactments
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
