The High Court dismissed a writ petition challenging the Trial Court's refusal to appoint a court commissioner before the recording of oral evidence in a property boundary dispute.
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.
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909wp7752o17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 7752 OF 2017
MOHAMMED ISMAIL NAWAZSAB SHAIKH
VERSUS
PRAKASH KODIRAM PAWAR AND OTHERS
Advocate for the Petitioner : Shri Madde Shrikant B.
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 04th October, 2017
Per Court:
1 The Petitioner is aggrieved by the order dated 03.01.2017 by
which the Trial Court has rejected application Exhibit-30 and refused to appoint a court commissioner.
2 I have considered the strenuous submissions of the learned Advocate for the Petitioner and the seven grounds formulated by him in the memo of the petition.
3 Exhibit-30 was filed when the application for temporary injunction (Exhibit-5) was pending. It was stated in Exhibit-30 that the suit plots be measured and the area be demarcated as per the Sale Deed. The Trial Court has rejected Exhibit-30 on the ground that there is no dispute as regards the boundaries.
4 The learned Advocate for the Petitioner submits that the
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boundaries are disputed and the recording of oral evidence has commenced. The Defendants have claimed that they are in possession of the suit property.
5 This Court has consistently held in several judgments that a court commissioner is not to be appointed before the recording of oral evidence except in rare and peculiar circumstances. It has been consistently ruled that a court commissioner could be appointed if there are boundary disputes, for locating boundaries, fixing boundary map and even for indicating encroached areas.
6 Considering the above and the fact that Exhibit-30 was filed before the commencement of the recording of oral evidence, I do not find any reason to entertain this petition. The Writ Petition is, therefore, dismissed.
7 It is, however, made clear that after the recording of oral evidence, if either of the litigating sides move an application for appointment of a court commissioner, the Trial Court would consider the
same on it's own merits and without being influenced by the observations set out in the impugned order dated 03.01.2017.
( RAVINDRA V. GHUGE, J. )
kps
MOHAMMED ISMAIL NAWAZSAB SHAIKH
PRAKASH KODIRAM PAWAR
RAVINDRA V. GHUGE
RAVINDRA V. GHUGE, J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
