Dismissed

Mrs. Aroti Gautam Bhattacharya and Ors. v. Mrs. Kirti Anil Amale

Bombay HC6 Aug 2021WP/9450/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court of Bombay dismissed a challenge to the Trial Court's rejection of an application seeking appointment of a Court Commissioner to take possession of suit premises, holding that commissioners cannot be appointed for evidence collection.

What did the court decide?

The Writ Petition was dismissed, specifically the challenge to the order rejecting the application for appointment of a Court Commissioner.

2By this Petition filed under Article 227 of the Constitution of India, Petitioners who are original plaintiffs, had challenged the order dated 29th June, 2015 passed by the learned Joint Civil Judge, Senior Division, Nashik below Exh. 58 in Special Civil Suit No.26 of 2014. In Exh. 58- application, prayer was made to appoint Court Commissioner to take possession of the suit premises and hand over the same to the plaintiffs by making necessary panchnama. The said application was rejected by the impugned order.

3Mr. Shah, learned Counsel for the Petitioners submits that in the peculiar circumstances of this case, the relief which is sought in the application at Exh. 58 be granted in the interest of justice. He further submits that Defendant was in occupation of the premises on the basis of leave and license agreement and inspite of termination of the same,

Defendant failed to deliver the possession of the said premises to the plaintiffs. He, submitted that, however, in the written statement, Defendant contended that she had already delivered possession to the Plaintiffs and in view of such contention, Exh. 58 was filed, seeking abovereferred reliefs.

4The learned Trial Court while rejecting Exh. 58 application observed that the application is beyond scope of Order 26 Rule 9 or 10 of CPC . The learned Trial Court has held that the question who is in possession of the property, can be decided by the learned Trial Court on the basis of oral and documentary evidence laid by the parties. No fault can be found with the reasoning given by the learned Trial Court. It is well settled position that Commission cannot be appointed for collection of evidence. Therefore, this is not the case where discretionary jurisdiction of this Court under Article 227 of Constitution of India is to be exercised.

Mrs. Aroti Gautam Bhattacharya and Ors. v. Mrs. Kirti Anil Amale

Case brief

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What did the court decide?

Mrs. Aroti Gautam Bhattacharya and Ors. v. Mrs. Kirti Anil Amale

Case brief

What is this about?

What did the court decide?

What the court decided

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