Q :- Lower court has appointed court commissioner without hearing defendant as he was proceeded exparte before trial court. Whether he can challenge that order before appellate court? what order the appellate court should pass in such circumstances?
Ans:- Civil procedure does not permit justice to become one-sided merely because the defendant has been proceeded ex parte. A recurring question arises where, after setting the defendant ex parte, the trial court appoints a Court Commissioner without hearing him. Can that order be challenged before the appellate court, and if yes, what should the appellate court do? The answer lies in a careful reading of Section 96(2), Section 105 and Order XXVI Rule 18 of the Code of Civil Procedure, 1908.
At the outset, one distinction must be kept clear. An order appointing a Court Commissioner is ordinarily not an independently appealable order under Order XLIII Rule 1 CPC. Therefore, the proper course in most cases is not to file a separate appeal against the appointment order, but to challenge that interlocutory order in the appeal against the final decree if that order affected the ultimate decision of the case.
This is where Section 105 CPC becomes crucial. The provision declares that, save as otherwise expressly provided, no appeal lies from every order; however, where a decree is appealed from, any error, defect or irregularity in an order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. In other words, a non-appealable interlocutory order does not become immune from scrutiny; it may still be attacked when the decree founded upon or influenced by that order is challenged.
If the decree itself is ex parte, the defendant has a statutory remedy under Section 96(2) CPC. A regular first appeal against an ex parte decree is maintainable, and such remedy can exist even alongside proceedings under Order IX Rule 13 CPC. More importantly, the appellate court in such an appeal can examine whether the trial court was justified in proceeding ex parte in the first place.
In the context of commissioner proceedings, Order XXVI Rule 18 CPC assumes significance. It provides that where a commission is issued, the court shall direct the parties to appear before the Commissioner in person or by agent or pleader, and if they do not so appear, the Commissioner may proceed in their absence. The structure of the rule shows that participation of parties is the normal rule and absence-based proceeding is only permissible after due opportunity has been afforded.
Therefore, the mere fact that the defendant had earlier been set ex parte does not automatically answer the entire controversy. The appellate court must still examine whether the ex parte order itself was proper, whether the commissioner proceedings were notified in accordance with law, whether the defendant had a fair chance to participate, and whether the Commissioner’s report materially influenced the decree. The central issue is not formal ex parte status alone, but whether the procedure adopted caused legal prejudice.
A Court Commissioner is meant to assist the court in clarifying physical features, local conditions, accounts, partitions or other matters requiring on-the-spot or specialized inquiry. The process is not intended to become a substitute for unilateral evidence collection by one party behind the back of the other. If the report was obtained in circumstances that denied effective participation to the defendant and was then relied upon as a significant basis of the decree, the appellate court can legitimately treat the irregularity as one affecting the decision of the case.
Yet, every ex parte appointment of a Commissioner does not automatically vitiate the decree. Section 99 CPC also reflects the general policy that a decree should not be reversed for mere error or irregularity unless it affects the merits or jurisdiction. Read with Section 105 CPC, the appellate approach should be one of substance: whether the challenged order caused failure of justice and whether it had a real nexus with the outcome of the suit.
What, then, should the appellate court do? If it finds that the defendant was wrongly proceeded ex parte, or that the commissioner process violated fair opportunity and the report materially influenced the decree, the proper order would ordinarily be to set aside the ex parte decree and remit the matter for fresh disposal in accordance with law. Such remand may include liberty to contest the commissioner proceedings, file objections to the report, and lead evidence on the relevant issues.
On the other hand, if the commissioner’s report had little or no bearing on the final adjudication, and the decree is independently sustainable on other unimpeachable material, the appellate court may decline interference despite the procedural objection. The law does not reward technical objections detached from prejudice; it intervenes when the irregularity has materially affected the decision.
The correct legal position may therefore be stated thus: an order appointing a Court Commissioner after the defendant has been proceeded ex parte is generally not separately appealable, but it can be challenged in the appeal against the decree under Section 105 CPC if it affected the decision of the case. If the decree is ex parte, the defendant can invoke Section 96(2) CPC and ask the appellate court to examine both the legality of the ex parte proceedings and the prejudice caused by the commissioner order.
The true principle is one of procedural fairness. A defendant may be absent, but justice cannot be absent. Where the commissioner process becomes part of an unfair chain leading to an ex parte decree, the appellate court not only may interfere—it ought to.
No comments:
Post a Comment