Dismissed

Mr. Shaikh Mohammad Shaikh Mahamood v. Shri. Vijay Kashinath Varde

Bombay HC1 Jul 2014WP/4383/2014

Case brief

AI extract

What is this about?

In a civil writ petition, the High Court of Bombay dismissed the petition in limine against the trial court's order rejecting reappointment of a Commissioner. The court held that the petitioner failed to examine the Commissioner under CPC Order 26 Rule 10, and objections to the report require cogent evidence.

What did the court decide?

Relief under the writ petition was dismissed in limine due to failure to examine the Commissioner as required by Order 26, Rule 10 CPC.

Mr. Shaikh Mohammad Shaikh Mahamood Vs Shri. Vijay… — Execution and Attachment | Bombay HC (2014)

WP4383.2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.4383 OF 2014

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Mr. Shaikh Mohammad Shaikh .... Petitioner Mohamood (Ori. Plaintiff)

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Vs.

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Shri. Vijay Kashinath Varde .... Respondent

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Mr. Pratap Pandurang Bhosale, Advocate for the petitioner. Mr. Sudhir Prabhu, Advocate for the respondent.

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Coram : Smt. R.P. SondurBaldota, J. Date : 1^st July, 2014.

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P.C.

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The petition assails order passed by the trial court rejecting application filed by the petitioner for reappointment of the Commissioner for inspection of the suit property and report about the construction standing thereon. The trial court had earlier, on the application of the petitioner, appointed a Commissioner under Order 26, Rule 9 Code of Civil Procedure. The Commissioner visited the suit property and filed his report at Exhibit 21. It appears that the petitioner is not happy with that report. It is his complaint that while carrying the work of commission, the Commissioner did not take certain documents produced by him and therefore the reappointment of the

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Commissioner was necessary. The application was opposed by the respondent contending that there cannot be reappointment of the Commissioner and the objections to the report of the Commissioner taken by the petitioner is required to be proved by cogent evidence. It cannot be determined merely on reading the report. The executing court accepted the contention of the respondents. It also noted that the discretion vested to the court under Rules 9 and 10 of Order 26 should not be exercised when the contentions of the party can be substantiated by their evidence. The court also noted that the petitioner has not examined the Court Commissioner as per the procedure laid down under Order 26, Rule 10 SubRules (1), (2) and (3). There is no infirmity in the order. Any objection that the petitioner has to the report has to be appropriately established by the necessary evidence by examining the Commissioner. The petition is therefore dismissed in limine.

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(Smt. R.P. SondurBaldota, J.)

Mr. Shaikh Mohammad Shaikh Mahamood v. Shri. Vijay Kashinath Varde

Case brief

What is this about?

What did the court decide?

Mr. Shaikh Mohammad Shaikh Mahamood v. Shri. Vijay Kashinath Varde

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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