Dismissed

Bhikamchand Krishnachand Depura and Ors. v. Jalgaon City Municipal Corp. Thr. Its Commissioner

Bombay HC23 Jan 2012WP/750/2012

Case brief

AI extract

What is this about?

In a Writ Petition challenging the rejection of an application for appointment of a Court Commissioner, the Bombay High Court held that the appointment was not necessary as the parties had not yet led evidence. The Court distinguished the case as one not involving boundary dispute or identification of suit property and dismissed the petition.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Bhikamchand Krishnachand Depura and Ors. Vs… — Civil Procedure and Limitation | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 750 OF 2012

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Bhikamchand Krishnachand Depura and others .. Petitioner

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Versus

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Jalgaon City Muncipal Corporation Through its Commissioner .. Respondent

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Shri S. H. Tripathi, Advocate for Petitioners.

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CORAM : S. V. GANGAPURWALA, J. DATE : 23RD JANUARY, 2012.

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PER COURT :

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. The petitioners have filed suit for declaration and perpetual injunction. The evidence of the parties is yet to be led. The petitioners filed an application for appointment of Court Commissioner to measure the ota and the road situated towards the North of the suit house. The said application is rejected. Aggrieved thereby the present petition is filed.

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Shri Tripathi, the learned counsel for petitioners strenuously contends that the dispute is regarding the

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encroachment alleged by the defendant. The ota is constructed legally. The other shops/houses in the same lane are similarly situated. As the encroachment is alleged by the defendant, it would be appropriate and necessary to appoint the Court Commissioner to measure the width of the road and the ota constructed by petitioners. The joint measurement of the road and ota would clarify the position. In such cases the Court Commissioner is to be appointed. The learned counsel relies on the judgment of the learned Single of this Court in a case of Yashwant Ghuse Vs. Vithobaji Ladekar reported in 2010 (3) Mh. L. J. 956 .

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With the assistance of learned counsel I have gone through the order and the pleadings. The petitioners have given application for measurement of the ota i. e. length and width of the land on which according to them the ota is constructed. The petitioners will have to prove their case. So also if the respondent alleged that this is a case of encroachment, it would prove it's case. The parties have not yet led their evidence.

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The present case is not a case of boundary dispute or identification of suit property. The judgment of the learned Single Judge of this Court in a case of Yashwant Ghuse

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3 wp 750.12

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referred supra deals with the case of boundary dispute or dispute about the identity of the land.

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The plaintiff has to prove his case by adducing evidence. There is no impediment for the petitioners to measure their construction along with ota from a competent authority and produce the evidence before the Court. For the said purpose appointment of Court Commissioner is not necessitated.

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The appointment of Court Commissioner is a discretion of the Court. If the Court feels after the evidence is adduced that the appointment of Court Commissioner would be necessary to effectively adjudicate the dispute between the parties, then the Court can appoint Court Commissioner.

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At this stage, in the present case, the order impugned requires no interference in the writ jurisdiction of this Court under Article 227 of the Constitution of India. The writ petition is dismissed, however, with no order as to costs.

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[ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 12

Bhikamchand Krishnachand Depura and Ors. v. Jalgaon City Municipal Corp. Thr. Its Commissioner

Case brief

What is this about?

What did the court decide?

Bhikamchand Krishnachand Depura and Ors. v. Jalgaon City Municipal Corp. Thr. Its Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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