The Bombay High Court dismissed a writ petition challenging a trial court judgment appointing a Court Commissioner to ascertain encroachment in a property dispute. The court held the trial court had the right to appoint a commissioner to elucidate the matter.
Writ petition dismissed with no order as to costs.
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.
wp597-13.order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
Writ Petition No. 597 of 2013
Pandurang Samba Varate and another.
Vs.
Ashok Bhaurao Derkar
Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders.
Court's or Judge's Orders.
Mr. Kunal Nalamwar, counsel for petitioners.
CORAM : SMT. VASANTI A. NAIK, J. DATE : 4 th February, 2013.
Heard.
By this petition, the petitioners impugn an order passed by the trial court on 20.10.2012, allowing an application filed by the respondent-plaintiff for appointment of the Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure.
On hearing the leaned counsel for the petitioners and on a perusal of the impugned order, as also the plaint pleadings, it appears that there is hardly any scope for interference with the impugned order in exercise of the writ jurisdiction. The respondent-plaintiff had filed a suit for removal of encroachment and possession of the land encroached upon by the petitioners. With a view to elucidate the matter in dispute, according to the trial court, it was necessary to appoint a Court Commissioner. Merely because the trial had commenced, it cannot be said that the appointment of the Court Commissioner should not have been made by the trial court. The trial court rightly held that with a view to find out whether the defendants-petitioners had in fact encroached upon the land of the plaintiff, the
wp597-13.order
report of the Court Commissioner could have surely assisted the court. The order appears to be just and proper.
In the result, the writ petition is dismissed with no order as to costs.
JUDGE
Hirekhan
2 issues framed by the court
Whether the High Court can interfere with the trial court's order appointing a Court Commissioner in a suit for removal of encroachment.
Whether the appointment of a Court Commissioner after the commencement of trial is justified.
1 provisions across 1 enactments
Pandurang Samba Varate and another
Ashok Bhaurao Derkar
Vasanti A. Naik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
