The High Court dismissed a writ petition challenging an impugned order rejecting an application for appointment of a court commissioner. The court held a surveyor's report made the application inapposite.
The writ petition was dismissed as no case for interference was made out.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
wp5065.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5065 OF 2012
Ramchandra Laxman Mali and others : Petitioners. Versus Ravji Vithoba Bandgar and ors. : Respondents.
Mr. Sham Walve with Ms.Sucheta Mirashi for the Petitioners.
CORAM : R. M. SAVANT, J. DATE : 25th July 2012
P.C.
1 The above Petition takes exception to the order dated 2/12/2011 passed by the learned Civil Judge, Junior Division, Mangalwedha by which order the application for appointment of court commissioner came to be rejected. The report of the surveyor who was appointed in the earlier suit being Regular Civil Suit No.44 of 1985 is already on record. The said surveyor has been examined in the suit. It is after the evidence of the said surveyor was complete, that the instant application for appointment of the court commissioner came to be filed.
2 In the aforesaid conspectus of facts, the trial Court did not deem it appropriate to exercise the powers under Order 26 Rule 9 of the Code of Civil Procedure. The trial Court was of the view that it would be for the parties to
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prove the existence of encroachment by leading evidence.
3 The learned counsel for the Petitioners sought to rely upon the judgment of a learned Single Judge of this Court reported in 2009(5) Mh.L.J. 279 in the matter of Vijay s/o Shrawan Shende and others v/s. State of Maharashtra and others. There cannot be any quarrel with the proposition laid down in the said judgment. However, in the facts and circumstances of the present case where there is already a measurement map on record, that too prepared by a surveyor, the said judgment would have no application. In that view of the matter, no case for interference is made out. The above Writ Petition is accordingly dismissed.
[R.M.SAVANT, J]
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2 issues framed by the court
Whether the High Court should interfere with the trial court's rejection of an application for appointment of a court commissioner in the presence of a surveyor's measurement map.
Whether the judgment of Vijay s/o Shrawan Shende and others v/s. State of Maharashtra and others applies to the present facts.
Colour shows how this judgement treated each authority
Vijay s/o Shrawan Shende and others v/s. State of Maharashtra and othersReferred¶3
2009(5) Mh.L.J. 279 · Who else cites this
1 provisions across 1 enactments
Ramchandra Laxman Mali and others
Ravji Vithoba Bandgar and ors.
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
