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2015 Supreme(Bom) 236
IN THE HIGH COURT OF BOMBAY at Goa
U.V. BAKRE, J.
Maria Pereira & Others - Petitioners
Versus
Dolorosa Christina Rodrigues, (now deceased), represented through her LRs. & Others - Respondents
Writ Petition No. 603 of 2007
Decided on: 12-02-2015
Advocate Appeared:
For the Petitioners:Anthony D'silva, Advocate.
Headnote:Civil Procedure Code, 1908 - Order XXVI, Rule 9, Order XLI, Rule 27 Appointment of Commissioner. Where trial Court already decided suit on basis of evidence led by parties holding that local investigation is not necessary therefore appellate Court cannot resort to appointment of Commissioner to inspect site. It is pertinent to note that during the pendency of the said Regular Civil Suit No. 32/1992, it was not found by the trial Court that local investigation was necessary for the purpose of elucidating the matter in dispute. In the case of "Shri. Vishnu Anant Pollshet" (supra), the Court has observed that in an adversarial system, when both the parties are given opportunity of leading evidence and the opportunities are availed of by both the sides whatever be the material brought before the Court it should form the basis for the decision in a given proceeding. The Court cannot hope for either clarification or better material and therefore, resort to the device of appointing a Commissioner.
It has been held that a Commissioner cannot be appointed to collect evidence just before judgment and that the Court has to decide the matter based on the material already brought by evidence of both the parties. The position in the present matter is that the judgment and decree has been already passed based on the material already brought by evidence of both the parties and in the first appeal, the Appellate Court has directly appointed the Commissioner to inspect the site and to report about the exact location of the plot purchased by the predecessor of the respondents namely Pedro Francis Fernandes by sale deed dated 1.6.1939. It should be kept in mind that the matter of resurvey is pending before the Inquiry Officer. Certainly the above order is arbitrary and would cause great hardship and prejudice to the petitioners while deciding the appeal filed by them. It should be kept in mind that the respondents have not filed any affidavit-in-reply in the present petition thereby denying the fact as stated in the petition for supporting the impugned order.
1. Heard Mr. D'silva, learned counsel for the petitioners.
2. By this petition, the petitioners have challenged the order dated 24/11/2007 passed by the learned Ad-hoc District Judge – 2, (FTC – II), Margao (Appellate Court), in Regular Civil Appeal No. 48 of 2002.
3. Regular Civil Suit No. 32 of 1992 was filed by the respondents against the petitioners, for injunction. In that suit, it was claimed that Shri. Pedro Francis Fernandes, that is the predecessor in title of the respondents herein had, by sale deed dated 01/06/1939, purchased a property known as Propriedade De Cima Lote D and the said purchased land having shape of irregular polygon was admeasuring 3409 square metres and after purchase by Pedro Francis Fernandes the said plot came to be registered under Land Registration No. 36.756 and it was inscribed in his name under Inscription No. 31199. During the survey under the Goa Land Revenue Code, the said plot was surveyed under chalta no. 2 of P. T. Sheet no. 34 of City survey of Margao. That was the suit property. The petitioners were the defendants in that suit. They had denied the case of the respondents. However, the suit was decreed and the petitioners, their relatives, etc., were permanently restrained from interfering with the suit property. The respondents have filed Regular Civil Appeal No. 48/2002 against the Judgment and decree dated 31/12/2001. In this appeal, the respondents had filed an application dated 10/10/2007, under Order 26 Rule 9 and 10A of C.P.C.
4. In that application under Order 26 Rule 9 of C.P.C., the respondents alleged as follows:- Initially the suit property was surveyed as part of Chalta no. 1 of P. T. Sheet no. 34 of City Survey Margao. The respondents had made an application for resurvey before the Inquiry Officer and by the order dated 02/05/1991 the said application was allowed and the plot purchased by the respondents (i.e. plaintiffs in civil suit no. 32/1992) was resurveyed under Chalta no. 2 of P. T. Sheet no. 34. On 25/02/1992, the respondents filed the said Regular Civil Suit No. 32 of 1992 for injunction against the petitioners. Aggrieved by the said order dated 2/05/1991 of the Inquiry Officer, the petitioners filed first appeal before the Deputy Collector and Sub-Divisional Officer, which came to be registered under case No. LRC/CTS/APPL/78/92. Vide order dated 17/08/1994, the said first appeal was dismissed. The petitioners then filed second appeal against the said order, being Case No. 11-94/LAC/IInd/APL/AC. The Regular Civil Suit No. 32/1992 came to be decreed by Judgment and decree dated 31/12/2001. By order dated 08/03/2002, the second appeal being Case No. 11-94/LAC/IInd/APL/AC came to be allowed. The Additional Collector quashed the order dated 02/05/1991 and remanded the matter back to the Inquiry Officer for fresh hearing on merits after serving notice to the interested parties. Against the said order dated 08/03/2002, the respondents filed another appeal before the Administrative Tribunal and the said appeal was also dismissed by order dated 13/01/2005. Against the same order dated 08/03/2002, the respondents had also filed a Revision Application No. 15/2/2005-RD, before the Secretary (Revenue), which was also dismissed by order dated 13/02/2007. Against the judgment and decree dated 31/12/2001, passed in Regular Civil Suit No. 32/1992, the petitioners had filed Regular Civil Appeal No. 48 of 2002, during the pendency of the said appeals.
5. In the said First Appeal No. 48 of 2002, the respondents had got a plan prepared by a qualified surveyor namely A. Furtado allegedly locating the plot as per the sale deed and they had filed an application before the learned Appellate Court to produce the same. The said application however was dismissed by the Appellate Court by expressing the willingness to appoint Commissioner to inspect the site. Therefore, the respondents filed the said application dated 10/10/2007 under Order 26 Rule 9 of C.P.C. for appointment of a com
