Advocates:
['BHANDARI ANAND P', 'CAVEAT FILED BY ADV THIGALE GIRISH K NAIK', '', 'R NO SERVED THROUGH PAPER PUBLICATION NOTICE', 'FOR R', 'Adv G K Naik Thigale', 'R No is Served', 'SAPKAL SANDIP R AND CHORMAL A B V P']

922-WP-2987-2020.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

922 WRIT PETITION NO.2987 OF 2020

Mohammad Adil Khan S/o Mohd. Akil Khan

… Petitioner

Versus

Shaikh Samad S/o Shaikh Madan & Ors.

… Respondents

…

Advocate for the Petitioner: Mr. Anand P. Bhandari

Advocate for Respondent No.2: Mr. G. K. Naik (Thigale)

Advocate for Respondent No.3: Mr. V. D. Sapkal (Senior Counsel) i/b Mr.

Ajit B. Chormal

…

CORAM : N. B. SURYAWANSHI, J.

DATE

: 23^rd November, 2021

PER COURT :

.

This petition takes exception to the order dated 04-01-2020

passed below Exhibit-6/A by the learned 4^th Joint Civil Judge, Senior

Division, Aurangabad in Regular Civil Suit No.813/2019, by which the

application filed by the Petitioner under Order 39 Rule 7 of the Civil

Procedure Code, seeking appointment of the Court Commissioner is

rejected.

2.

The learned advocate for the Petitioner assailed the

impugned order on the ground that the same is passed on the basis of

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assumptions and presumptions. According to him, the Trial Court has

recorded reasons affecting the merits of the matter. The Trial Court was

not justified in commenting on merits of the matter even before leading

evidence. The provisions of Order 39 Rule 7 of the Code of Civil

Procedure are not properly considered by the Trial Court while rejecting

the prayer of the Petitioner, seeking measurement of land by the Court

Commissioner which would facilitate effective adjudication of the suit.

He further submitted that by the impugned order, the doors of the

Petitioner are closed for moving an application under Order 26 Rule 9 at

subsequent stage. He, therefore, submitted that the impugned order is

liable to be set aside by allowing the petition.

3.

Per contra, the learned Senior Advocate for Respondent

No.3 supported the impugned order.

4.

It is a matter of record that, the Trial Court has passed the

impugned order, which runs into 38 pages. At the initial stage, when the

Trial Court was considering the application under Order 39 Rule 7, it

was not necessary for the Trial Court to pass such a lengthy order.

However, there is no illegality or perversity in the order passed by the

Trial Court.

5.

The apprehension of the Petitioner that the Trial Court has

made observations on merits of the suit which will come in the way of

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the Petitioner, is misplaced and misconceived. The Trial Court will

decide the suit on the basis of evidence led by the parties. Therefore,

whatever observations on merits made by the Trial Court at the initial

stage would be of no consequence at the time of deciding the suit finally

on the basis of evidence led by the parties.

6.

The another submission of the Petitioner is that by the

impugned order, the doors are closed to the Petitioner for moving the

application under Order 26 Rule 9 at subsequent stage, if the need be, is

also misconceived. The Trial Court in Para-48 of the impugned order has

observed thus;

“It is open to the Court to appoint commissioner to

inspect and ascertain nature and extent of

construction made by the defendant”.

Perusal of the impugned order, therefore, does not

give an impression that the Trial Court has closed doors of the Petitioner

to move application under Order 26 Rule 9 at subsequent stage. The

Petitioner is at liberty to file application Order 26 Rule 9 at a latter

stage.

7.

For the aforestated reasons, there is no merit in the writ

petition. Hence, the writ petition is dismissed with above observations.

(N. B. SURYAWANSHI, J.)

Sameer

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