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MILIND N. JADHAV
Surel Milk & Food Processor Pvt. Ltd. – Appellant
Versus
Bhagwan Krishna Pawar – Respondent
JUDGMENT:
1. Not on board. Mentioned. Taken on board.
2. Perused the praecipe dated 26.08.2024.
3. Heard Mr. Kulkarni, learned Advocate for Petitioners and Mr. Jadhav, learned Advocate for Respondent Nos. 1 to 3.
4. Present Writ Petition takes exception to the order dated 20.07.2024 passed by the learned Trial Court below Exh. 75 whereby Application filed by Plaintiffs (Respondent Nos. 1 to 4 herein) for appointment of Court Commissioner i.e. T.I.L.R. to undertake the exercise of survey, measurement and mapping of the Suit property is allowed. Suit is filed in the year 2021 seeking mandatory injunction as also it seeks an additional relief of removal of encroachment by Defendants on the Suit property. There is also a precursor Suit which was filed by Plaintiffs in the year 2015 for the same reliefs which remained pending for some time pursuant to which it was withdrawn by Plaintiff/s with liberty to file a fresh Suit. In that Suit, Plaintiffs had made an Application for appointment of T.I.L.R. as Court Commissioner which was rejected. Be that as it may, in so far as the present Suit is concerned, Plaintiffs approached the Court seeking mandatory injunction in respect of the Suit proper
The court established that the appointment of a Court Commissioner under Order XXVI Rule 9 CPC should follow the presentation of evidence by the parties, not precede it.
Law relating to appointment of Court Commissioner is fairly well settled and that the Court Commissioner cannot be appointed for the purpose of collection of evidence.
The appointment of an Advocate Commissioner must be timely and not used to collect evidence after the conclusion of arguments.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
The trial Court's discretion to appoint a Court Commissioner under Order XXVI, Rule 9 of CPC in cases involving boundary disputes and the importance of a duly drawn measurement plan/map in such suits....
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