In a writ petition, the petitioner challenged orders rejecting his applications to appoint a different Court Commissioner to inspect suit property. The High Court found no scope for interference as the petitioner could have directed the existing Commissioner to submit a detailed report instead.
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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.658/2013
Shri Dattulal Gopaldas Agrawal ...Versus...
Shri Dinkarrao Govindrao Pathak and another
Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders
Court's or Judge's orders
Shri M.M. Agnihotri, Counsel for petitioner
CORAM : SMT. VASANTI A. NAIK, J. DATE : 12.02.2013
By this petition, the petitioner impugns an order passed by the trial Court on 29.2.2012 so far it rejects the prayer of the petitioner to appoint a different Court Commissioner to examine the suit shop and submit his report. The petitioner also challenges an order, dated 18.12.2012, rejecting an application filed by the petitioner for appointing a second (different) Court Commissioner.
The petitioner is the original plaintiff. A suit was filed by the plaintiff for declaration and permanent injunction against the defendants. It was the case of the petitioner that the notice issued by the respondent – Municipal Council for demolition of the suit property was null and void and the suit shop in possession of the petitioner as a tenant was not in a dilapidated condition. It appears that during the pendency of the proceedings, a Court Commissioner was appointed on an application filed by the petitioner. The Court
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Commissioner submitted a report in regard to the condition of the building. According to the petitioner, the Court Commissioner had not made a proper inspection of the property and had not submitted a proper report in regard to the condition of the building. The report was not acceptable to the petitioner and therefore, the petitioner filed an application for appointment of another Court Commissioner. The trial Court by the impugned order, dated 29.2.2012 appointed the same Court Commissioner i.e. the Chief Engineer, P.W.D., Amravati to inspect the suit shop and to submit a detailed report pointing out whether the suit shop was in a dilapidated condition or not. Since the trial Court had appointed the same person as a Court Commissioner, the petitioner again applied for appointing some other person as a Court Commissioner. The said application was however dismissed by the impugned order, dated 18.12.2012.
On hearing the learned Counsel for the petitioner and on a perusal of the impugned order, it appears that there is no scope for interference with the impugned order in exercise of the writ jurisdiction. Merely because the report of the Court Commissioner, appointed by the trial Court, was not acceptable to the petitioner, it appears that the petitioner was seeking the appointment of another person as a Court Commissioner. If the Court Commissioner had not properly inspected the suit shop and had not submitted a detailed report in regard to the condition of the building, the same Commissioner could have been asked to submit a detailed report. The trial Court, therefore, rightly by the impugned order, dated 29.2.2012 directed the same Court Commissioner i.e. the Chief Engineer, P.W.D., Amravati to submit a detailed report in
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regard to the construction condition of the suit shop. The order, dated 29.2.2012 was just and proper and there was no reason for the petitioner to apply for the appointment of a different Court Commissioner by making an application. However, the petitioner, for the reasons best known to him, filed an application for appointment of another Court Commissioner, which the trial Court rejected by the impugned order, dated 18.12.2012. Both the orders are just and proper and call for no interference in exercise of the writ jurisdiction.
In the result, the writ petition is dismissed with no order
as to costs.
JUDGE
ssw
2 issues framed by the court
Whether the High Court should interfere with the trial court's rejection of the petitioner's application to appoint a different Court Commissioner who submitted a report acceptable only to the other p
Whether the High Court should re-appoint a different Court Commissioner to inspect the suit shop and examine its structural condition.
Dattulal Gopaldas Agrawal
Dinkarrao Govindrao Pathak
Vasanti A. Naik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
