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O.26 R.9: Application for appointment
of Court Commissioner for local inspection of the Suit property, etc.
The accrual of cause of action to
file this Application: The
Plaintiff / Defendant may take out Application under this Rule for the
following Reliefs:
a)
to
hold a scientific, technical, or expert investigation;
b)
to
conduct sale of property which is subject to speedy and natural decay and which
is in the custody of the Court pending the determination of the suit;
c)
to
perform any other ministerial act;
d)
to
carry out local investigation of the Suit property described in the Schedule of
properties (for the purpose of elucidating any matter in dispute, or of
ascertaining the market-value of any property, or the amount of any mesne
profits or damages or annual net profits (as may be applicable), with all the
powers under of the Code of Civil Procedure, and file Report before the Court;
e)
to
appoint Court Commissioner or any other fit person, to inquire about the mesne
profits which the defendants might have received by and from the use of the
Suit property, from the date of the institution of the Suit until delivery of
possession of the Suit property; and after inquiry being concluded, be pleased
to order and decree the defendants to deposit the accrued amount in the Court;
with the further direction to deposit mesne profits for every month, from the
date of the decree in respect of mesne profits till the delivery of possession
of Suit property,
f)
to
inquire about the mesne profits which the defendants might have received by and
from the use of the Suit property, from the date of the occupation of the Suit
property, till the date of institution of the Suit; and after inquiry being
concluded, be pleased to order and decree the defendants to deposit the said
accrued amount in the Court; with the further direction to deposit mesne profits
for every month, from the date of the institution of the Suit, till the date of
the decree, with such escalation in mesne profits as the Suit property might
fetch in the ordinary course.
The
Application may be taken in the form of a Notice of Motion / Notice / Exhibit /
Chamber Summons, as may be prescribed under the applicable provision of law,
and duly verified by the Applicant.
A
broad approach to drafting of any Application may be undertaken in three chronological “Heads” –
(1) Reliefs prayed for / claimed: It is of central importance that any Relief prayed /
claimed for, must be duly articulated, keeping in mind (a) the nature of
jurisdiction being exercised by the court having regard to the nature of
Application which is sought to be filed / moved; (b) the rights / interest
claimed by the Applicant; (c) the obligations and liabilities of the opposite
party.
(2) Grounds for Reliefs prayed for /
claimed; (both factual and legal):
Grounds for Reliefs prayed for / claimed, implies (a) the essence / conclusion
of material facts or proposition of facts which supports the reliefs prayed for
/ claimed; and (b) the provision of law / judgments of the Apex Court or High
Courts, which supports the reliefs prayed for / claimed.
(3) Material facts of the case: Narration of material facts thereby substantiating
the grounds on which the reliefs are claimed.
O.26 Rule 9: Commissions to make
local investigations
In
any suit in which the Court deems a local investigation to be requisite or
proper for the purpose of elucidating any matter in dispute, or of ascertaining
the market-value of any property, or the amount of any mesne profits or damages
or annual net profits, the Court may issue a commission to such person as it
thinks fit directing him to make such investigation and to report thereon to
the Court:
Provided
that, where the State Government has made rules as to the persons to whom such
commission shall be issued, the Court shall be bound by such rules.
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