Dismissed

Parubai Ranjit Nakade v. Yogesh Janardhan Jaybhaye and Ors.

Bombay HC25 Jan 2012WP/759/2012

Case brief

AI extract

What is this about?

A writ petition challenging the trial court's rejection of an application under Order XXVI Rule 9 CPC for appointment of a commissioner to inspect a suit site. The court dismissed the petition, holding dismissal exercised proper discretion as witness commission not necessary for verifying crop destruction.

What did the court decide?

Writ Petition dismissed; No costs.

Parubai Ranjit Nakade Vs Yogesh Janardhan… — Civil Procedure and Limitation | Bombay HC (2012)

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1 W.P. 759.2012

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 759 OF 2012

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 25/01/2012.

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Mr. Sudarshan J. Salunke, Advocate for the petitioner.

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PER COURT :

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The present respondent no. 1 / original plaintiff has filed a simplicitor Suit for injunction restraining the defendant i.e. present petitioner from interfering in his possession. The present petitioner filed an application purportedly under Order XXVI Rule 9 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] for appointment of Court commissioner. The purpose of the said appointment was for inspecting the suit site and also to see the position of the bandh and the standing crops. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed.

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Mr. Salunke, the learned counsel for the petitioner submits that the commissioner is required to be appointed to

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2 W.P. 759.2012

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bring on record the destruction of the bandh committed by the plaintiff. Such state of affairs can be brought on record with the aid of the Court commissioner. When there is a dispute about the boundary line and about the bandh, then the Court commissioner can be appointed. The learned counsel relies on the Judgment of the Single Judge of this Court in a case of T ajmulhussain S/o Mulla Mumtaz Hussain V/s Satish S/o Bhanudas Chavan reported in 1994 ( 3 ) Bom. C.R. - 317 . According to the learned counsel, the trial Court has not properly exercised the discretion.

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With the assistance of the learned counsel, I have gone through the pleadings and the order.

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The Suit filed by the present respondent is for simplicitor injunction. It is for the plaintiff to prove his possession over the suit property. To appoint the Court commissioner or not in view of Section 75 read with Order XXVI Rule 9 of the Code is the discretion of the Court. If the Court requires the assistance of the commissioner for adjudicating the matter more effectively, then the Court can appoint the commissioner. The trial Court while passing the order has considered all these aspects and has rejected the application.

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The Judgment of the learned Single Judge of this Court

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3 W.P. 759.2012

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in a case of Tajmulhussain S/o Mulla Mumtaz Hussain [ supra ] is on altogether a different premise. In the said case, the commissioner was appointed to measure the property and the assistance of the expert was required. In the present case, the defendant wants the commissioner to be appointed to verify the crops on the land and the destruction of the bandh. For the said purpose, the appointment of Court commissioner is not necessary. The defendant can prove his case by evidence.

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In light of the above, no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India.

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The Writ Petition as such is dismissed. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 759.2012

Parubai Ranjit Nakade v. Yogesh Janardhan Jaybhaye and Ors.

Case brief

What is this about?

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Parubai Ranjit Nakade v. Yogesh Janardhan Jaybhaye and Ors.

Case brief

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