This single judge dismissal quashed a trial court order that incorrectly approved an application for Court Commissioner in a suit for perpetual injunction where the plaint lacked a foundation showing encroachment or boundary dispute.
Application for appointment of Court Commissioner rejected; Writ petition 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.
1 wp 5669.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 5669 OF 2022
Swati Satish Kale and another .. Petitioners
Versus
Balasaheb Badrinath Gaikwad and others .. Respondents
Shri B. N. Patil, Advocate for the Petitioners.
CORAM : SHARMILA U. DESHMUKH, J. DATE : 16TH JANUARY, 2023.
FINAL ORDER :
2 wp 5669.22
perpetual injunction as against the defendants on the ground that the defendants are interfering in the enjoyment of the petitioners’ property by uprooting the poles and throwing garbage and waste in the petitioners’ property. Learned counsel for the petitioners has not been able to demonstrate that the suit as filed was in respect of encroachment by the defendants. Learned counsel for the petitioners submits that subsequently during the pendency of proceedings, defendants have encroached upon the suit property. In my view, in such event a necessary foundation has to be made in the plaint and only thereafter an application can be filed for appointment of Court Commissioner.
[SHARMILA U. DESHMUKH, J.]
bsb/Jan. 23
2 issues framed by the court
Whether the rejection of the petitioners application for appointment of a Court Commissioner was lawful given the absence of encroachment or boundary dispute in the plaint.
Whether an application for Court Commissioner can be filed without making a foundation of encroachment in the plaint.
Swati Satish Kale
Latha Satish Kale
Balasaheb Badrinath Gaikwad
Sharmila U. Deshmukh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
