The petitioner filed a writ petition challenging the Trial Court's order appointing a Court Commissioner in a suit for removal of encroachment. The High Court held the appointment was proper and dismissed the petition.
The writ petition was dismissed.
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.
wp-389.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.389 OF 2013
Balasaheb D Bahirat : Petitioner. Versus Deepak V Shahane and anr. : Respondents.
: Respondents.
Mr. Priten Killedar i/by Priten P Killedar & Co. for the Petitioner.
CORAM : R. M. SAVANT, J. DATE : 19th March 2013
P.C.
1 The writ jurisdiction of this Court is invoked against the order dated 01/10/2012 passed by the learned 2nd Joint Civil Judge, Junior Division, Daund, Dist. Pune, by which order the Application Exhibit 15 filed by the Respondent No.1 herein i.e. the original Plaintiff for appointment of Court Commissioner came to be allowed.
2 The suit in question being Regular Civil Suit No.333 of 2012 has been filed by the Plaintiff for removal of encroachment and injunction. It is the case of the Plaintiff that the Defendant i.e the Petitioner herein has encroached upon his land to the extent of 8 ft. The Plaintiff claims to have purchased the land in question by a Sale Deed dated 23/10/2010. In the said suit the application for temporary injunction is as yet pending. It is pending application for temporary injunction, that the Application Exhibit 15 for
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appointment of Court Commissioner came to be filed. It was mentioned in the said application that for ascertaining as to whether the Defendant has encroached upon the property of the Plaintiff, it is necessary that a Court Commissioner be appointed. The said application was opposed to on behalf of the Defendant by contending that appointment of Court Commissioner amounts to collection of evidence through the medium of Court.
3 The Trial Court has allowed the said application on the ground that considering the nature of the dispute involved and considering that the suit is one for removal of encroachment, the Court Commissioner by way of a revenue officer is required to be appointed. The Trial Court has therefore allowed the said Application Exhibit 15 and issued a mandate to the Court Commissioner as regards the manner in which he has to carry out the work of commission and submit a report to the Court.
4 In my view, considering the nature of the dispute involved, which is one for removal of encroachment, the Trial Court was well within its right to appoint the Court Commissioner for elucidating the matter in dispute. 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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1 issue framed by the court
Whether the Trial Court erred in appointing a Court Commissioner to ascertain encroachment in a suit for removal of encroachment.
Balasaheb D Bahirat
Deepak V Shahane
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
