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HIGH COURT OF BOMBAY
Sandeep V. Marne, J
DINANATH SUPDU JOSHI DIED THROUGH LRS SHARDA DINANATH JOSHI – Appellant
Versus
SHRIRAM SHRIKRUSHNA DAUTKHANE AND ANOTHER – Respondent
Writ Petition No. 9224 of 2022
For the Appellants/Petitioners: Shri D. A. Mane, Shri Durgesh M. Pingale
For the Respondents: Shri Ruchir S. Wani
Court Commissioners cannot be appointed to collect evidence during ongoing proceedings, especially when the burden of proof lies with the plaintiff.
Headnote:(A) Code of Civil Procedure, 1908 - Section 75 and Order 26 Rule 9 - Appointment of Court Commissioner - Petition against order allowing application for measurement of plots alleged to have encroachment. The court clarified the criteria for appointing a Court Commissioner, emphasizing that it should not be used to collect evidence. - The court concluded that the request to appoint a Court Commissioner at this juncture was unwarranted and set aside the previous order allowing such an appointment. (Paras 8, 10, 13, 15)
(B) Fact of the case: The petitioner sought judicial intervention against an order allowing measurement of plots during the pendency of an application for a temporary injunction aimed to restrain encroachment.
Findings of Court:
The Trial Court was found to have erred in allowing the appointment of a Court Commissioner, which conflicited with the ongoing injunction application.
Issues: The core issue was whether it was appropriate to appoint a Court Commissioner to gather evidence before trial.
Ratio Decidendi: The ruling establishes that a Court Commissioner should not be appointed for evidence collection during pending proceedings. The trial court should resolve based on plaintiff's assertions alone.
Result: Writ petition allowed and the earlier order set aside.
| Table of Content |
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| 1. the petitioner challenges an order for land measurement amidst encroachment claims. (Para 2 , 3 , 4) |
| 2. arguments address the appropriateness of measuring land during injunction proceedings. (Para 5 , 7) |
| 3. the court clarifies conditions under which a court commissioner can be appointed. (Para 6 , 8 , 10 , 12 , 14) |
| 4. the court rules against appointing court commissioner for evidence collection. (Para 11) |
| 5. the petitioner succeeds; previous order is set aside without costs. (Para 15 , 16) |
. Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.
2. By this petition, petitioner challenges order dated 12th August, 2022 passed by the 02nd Joint Civil Judge Senior Division, Nandurbar allowing application of the defendant No. 1/ respondent No. 1 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 at Survey No. 284, Shanti Nagar, Nandurbar. Application was moved by the defendant No. 1 in the suit filed by the plaintiff/petitioner. The suit is filed by plaintiff seeking injunction against the defendant No. 1 from encroaching upon common road in the colony and for removal of unauthorized construction. Municipal Council is also arrayed as defendant No. 2 to the suit. The defendant No. 1 has filed counter claim alleging encroachment by plaintiff and a prayer is made for measurement of Plot Nos. 23 and 24 and for removal of encroachment allegedly committed by plaintiff. An additional prayer is made for construction of road by defendant No. 2 between plot Nos. 23 and 24. Plaintiff has filed application for temporary injunction to restrain defendant No. 1 from encroaching upon the common road, which is pending. Defendant No. 1 has not filed application in his counter claim seeking any temporary injunction against the plaintiff.
3. During the pendency of application for temporary injunction filed by plaintiff, defendant No. 1 filed application dated 03rd March, 2021 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 alleging that plaintiff has committed encroachment upon the road and that by ignoring encroachment committed by the plaintiff, the Municipal Council has attempted to construct a road in plot No. 24 belonging to the defendant No. 1. Application was resisted by the plaintiff. By order dated 12th August, 2022, the application has been allowed directing the Deputy Superintendent of Land Records, Nandurbar to measure Plot Nos. 23 and 24 and to fix boundary marks and to verify whether there is any encroachment over 30 feet road. The Deputy Superintendent of Land Records has also been granted liberty to carry out measurement of entire Survey No. 284 to determine exact encroachment in respect of Plot Nos. 23 and 24. Plaintiff has challenged the order dated 12.08.2022 in the present petition.
4. I have heard learned counsels appearing for the parties and have perused records of the case.
5. In the present case, application for appointment of Court Commissioner for measurement of land has been filed by the defendant No. 1 during pendency of application for temporary injunction filed by Plaintiff. Mr. Wani, the learned counsel appearing for the defendant No. 1/Petitioner strenuously submits that the report of the Court Commissioner would bring on record the real picture on the site about the encroachment, if any, committed by both the parties and the same would assist the Court in deciding application for temporary injunction.
6. In support of his contention Mr. Wani has relied upon following judgments :
I Kishore H. Desai Vs. Lilawati Virji Chheda and others reported in 1993 Mh.L.J. 1155.
II. Balkrishna Gangabishaji Zawar Vs. Azmat Khan Suban Khan dated 27.09.2016 in Writ Petition No. 8608 of 2012.
III. Lalitprabha Krishnaji Ajgaonkar Vs. Yunus Khan reported in (2017) 1 Bom CR 179.
IV. Kalyan Santram Kawade and others Vs. Khanderao @ Khandu Ganpati Kawade reported in 2015(4) Mh.L.J. 429.
V. Dattatray Namdev Kalake Vs. B
