Shaikh Isak vs The State Of Maharashtra
2010 Latest Caselaw 148 Bom

                                   (1)




                                                                      
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                              
                    WRIT PETITION NO. 2921 OF 2010




                                             
    Shaikh Isak s/o. Shaikh Amir                       ..       Petitioner
    Age. 67 years, Occ. Agriculture,
    R/o. Village Sirsala, Tq. Parli Vaijnath,
    District - Beed.




                                   
                        ig         Versus


    1.   The State of Maharashtra                      ..       Respondents
                      
         Through District Collector, Beed.

    2.   Raosaheb s/o. Namdeo Rathod,
         Age. 33 years, Occ. Agriculture,
       

         R/o. Sirsala, Tq. Parli Vaijnath,
         District - Beed.
    



    Mrs. M.A. Kulkarni, Advocate for the petitioner.
    Mr. V.G. Shelke, A.G.P. for respondent/State.
    Mr. M.K. Deshpande, Advocate for respondent No.2.





                                   CORAM :    A.A. SAYED,J.

                                   DATED :    15.11.2010





    ORAL JUDGMENT :-



    1.       Rule.     Rule   made   returnable   forthwith   and   heard 










                                                                           
    finally by consent.




                                                   

2. The petitioner takes exception to the order dated

06.03.2010 passed by the Civil Judge, J.D., Parli Vaijnath.

By that order, the application filed by the

respondent/original plaintiff to measure the land bearing Gat

No. 83 including the disputed area of 37 R, by appointing a

Cadestral Surveyor or T.I.L.R. as a Court Commissioner, came

to be allowed.

3. The suit being R.C.S. No. 180 of 2007 is filed by

the respondent No.2/original plaintiff against the

petitioner/original defendant for recovery of an area of 37 R

from the land Gat No.83. The learned Counsel for the

petitioner/original defendant submitted that the trial of the

suit is virtually complete and written arguments are filed

and the matter is reserved for judgment by the learned Judge

and it is thereafter at this belated stage, the application

for appointment of Court Commissioner to measure the disputed

land, has been filed by the respondent No.2. Alluding to

para 3 of the plaint, learned Counsel for the petitioner

submitted that the respondent No.2 has himself described the

suit land with measurements in the plaint and has also

examined one Cadestral Surveyor working under T.I.L.R. in

evidence. The learned Counsel has placed reliance upon case

of Sanjay s/o. Namdeo Khandare V/s. Sahebrao s/o. Kachru

Khandare, 2001 (1) BCR 800, wherein a learned Single Judge of

this Court, has held that the appointment of Court

Commissioner to submit report regarding actual possession of

suit field would tantamount to collecting evidence, which is

not permissible.

4. Learned Counsel for respondent No.2 on the other

hand submitted that the order of the Court Commissioner has

been passed under Order 26 Rule 9 of the C.P.C., whereunder

it is discretion of the Court to order local investigation

for the purpose of elucidating any matter in dispute and such

investigation is always permissible. The learned Counsel for

respondent No.2 has relied upon the following three judgments

viz. [1]

Yeshwant Bhaduji Ghuse V/s. Vithobaji Laxman

Ladekar, 2010 (3) Mh.L.J.956, [2]

Kisanlal Maniklal Rathi

V/s. Dinkar Yashwant Patil, 2004 (1) Mh.L.J.138, and [3]

Girish Vasantrao Bhoyar & Anr V/s. Nimbaji Warluji Bambal,

2009 (4) ALL MR 761, wherein the learned Single Judges of

this Court held that the appointment of Court Commissioner in

cases of boundary disputes and dispute about identity of

land, was permissible.

5. Since the controversy centres around Rule 9 of

Order XXVI, it would be appropriate to extract the said

provision. It reads thus :

"9. Commissioner to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of

ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a

commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

6. Having heard learned Counsel for the parties and on

perusal of the material on record and the aforementioned

provision, in my view the matter warrants interference. The

stage at which the application is filed by respondent No.2,

would assume significance. It is an admitted position that

evidence is already recorded in the suit and written

arguments have also been filed by the parties. In these

circumstances, the possibility of filing such an application

to fill up certain lacunae, which are left out in the

evidence, cannot be ruled out. Possibly, a cue may have been

taken from the written arguments that has been filed by the

petitioner in the suit and realizing that he may be on a

sticky wicket, is what may have prompted the respondent No.2

to file the aforesaid application. Allowing such an

application at this stage, may result in prejudice being

caused to a party inasmuch as there would be no opportunity

for the affected party to dispute the Court Commissioner's

report and to cross-examine him. No doubt, it would be open

to such affected party to apply to the Court to cross-examine

the Court Commissioner on his report, but that would be re-

opening the evidence which is already closed. Unless an

exceptional case is made out, such a eventuality needs to be

eschewed.

7. It is significant to note that in the present case,

there is not a whisper in the application as to why such

application was not made at an earlier stage of the suit. In

the facts and circumstances of present case, this ground was

sufficient in itself to reject the application. Insofar as

the decisions cited by the learned Counsel for the respondent

are concerned, it is noticed that in all the aforesaid

decisions, the stage of the suit at which the application was

allowed, was not a stage as is in the present case and the

said decisions would therefore not be of any assistance to

the respondent No.2.

8. For the reasons stated above, I find that the

learned Trial Judge fell in error in allowing application at

such a belated stage when the evidence was closed, written

arguments were filed and the judgment is reserved. The

petition deserves to be allowed and is accordingly allowed.

The impugned order is quashed & set aside and rule is made

absolute in terms of prayer clause (C). In the facts and

circumstances of the case, there shall be no order as to

costs.

9. It may however be clarified that this order will

not preclude the Appeal Court, in the event such Appeal is

filed against the final decision in the suit, in passing such

orders as it may think necessary and appropriate in respect

of the controversy involved in this petition.

[A.A. SAYED,J.]

snk/2010/NOV10/wp2921.10