Dismissed

Municipal Council, Paranda v. Liyakatkhan Hayatkha Pathan and Ors.

Bombay HC12 Dec 2012WP/10344/2012

Case brief

AI extract

What is this about?

This judgment rejected a petition praying for a writ of certiorari to set aside an order dismissing an application for the appointment of a court commissioner. The court held that appointment of a commissioner is a court discretion exercisable under CPC provisions only after evidence is adduced, and the dismissal was not erroneous.

What did the court decide?

Rejection of the application for appointment of a court commissioner was upheld; Writ Petition dismissed; no order as to costs.

Municipal Council, Paranda Vs Liyakatkhan… — Civil Procedure and Limitation | Bombay HC (2012)

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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 WRIT PETITION NO.10344 OF 2012

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.A.T.Ghute, advocate for the petitioner.
Mr.H.I.Pathan, advocate for the Respondents.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 12.12.2012.
PER COURT :

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Heard.

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The application filed by the petitioner for appointment of the Court Commissioner is rejected. Aggrieved thereby, the present Writ Petition.

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The learned counsel for the petitioner submits that the plaintiff has denied the existence of the borewell, so also of the road. According to the learned counsel, the appointment of Court Commissioner is necessary. The petitioner in detail had given the reasons for appointment of Court Commissioner in his application. The same has not been considered by the Court. According to the learned counsel, the appointment of Court Commissioner would assist the Court in arriving at the just conclusion.

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Mr.Pathan, learned counsel for the Respondents supports the

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order.

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To appoint the Court Commissioner or not is the discretion of the Court U/s 75 read with Order 26 Rule 9 of the C.P.C. The parties have not yet adduced their evidence. Basically, it is for the plaintiff to prove his case. The petitioner is the defendant. The petitioner is Municipal Council and it would possess the record about the road, the construction of borewell etc.

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In light of the above, I do not see any error committed by the Court in passing the impugned order. After the evidence is adduced by the parties, if the Court feels that the appointment of Court Commissioner is necessary, at that time the Court may consider the application of either party for appointment of Court Commissioner on its own merits.

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The Writ Petition is dismissed. However, there shall be no order as to costs.

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(S.V.GANGAPURWALA,J.)

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Dt.12.12.2012. asp/office/wp10344.12

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Municipal Council, Paranda v. Liyakatkhan Hayatkha Pathan and Ors.

Case brief

What is this about?

What did the court decide?

Municipal Council, Paranda v. Liyakatkhan Hayatkha Pathan and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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