Bombay High Court
Balakdas S/O. Maroti Sharnagat ... vs Devrao S/O. Johari Kusram And ... on 1 August, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6917 OF 2015
1. Balakdas s/o Maroti Sharnagat
Aged 35 years,
2. Shivshankar s/o Maroti Sharnagat
Aged 30 years,
3. Ravishankar Maroti Sharnagat
Aged 26 years,
All R/o Murli Post. Sihora
Tah. Tumsar Dist. Bhandara ... Petitioners.
-vs-
1. Devrao s/o Johari Kusram
Aged 47 years.
2. Namdeo s/o Bhadhu Wasade,
Aged 62 years.
All R/o Murli Post Sihora
Tah. Tumsar Dist. Bhandara ... Respondents.
Shri N. R. Bhishikar, Advocate for petitioners.
Smt M. N. Hiwase, Advocate for respondents.
CORAM : A.S.CHANDURKAR, J.
DATE : August 01, 2016
Oral Judgment :
Rule. Heard finally with consent of learned counsel for the
parties.
The petitioners who are the original plaintiffs are aggrieved by the
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order dated 09/10/2015 passed by the trial Court below Exhibit-102
rejecting the application moved by the petitioners for examining the Taluka
Inspector of Land Records on his report dated 12/02/2014.
2. The petitioners have filed the aforesaid suit for possession after
removal of encroachment. The trial Court on 13/12/2013 passed an order
appointing Taluka Inspector of Land Records as the Court Commissioner for
joint measurement of the land owned by the petitioners and the respondents.
Thereafter the Court Commissioner conducted the measurement and
submitted his report. In the meanwhile the petitioners examined themselves
and their witnesses and thereafter closed their evidence. The respondent
No.1 completed his deposition and at that stage the aforesaid application for
examining the Court Commissioner came to be moved. This application was
opposed by the respondents and by the impugned order the trial Court
rejected the said application.
3. Shri N. R. Bhishikar, the learned counsel for the petitioners
submitted that the trial Court in the impugned order had in fact observed
that after the report of the joint measurement would be received, the
petitioner would have opportunity to examine the concerned officer.
However, only on the ground that the evidence of the parties had
commenced, the application came to be rejected. He submitted that the said
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report was received by the trial Court on 12/02/2014 after which the said
application came to be moved. He submitted that considering the nature of
the suit, the examination of the Court Commissioner was necessary. He
relied upon the provisions of Order XXVI Rule 10(2) of the Code of Civil
Procedure, 1908.
4. Ms M. N. Hiwase, the learned counsel for the respondents
supported the impugned order. It was submitted that no reason was
mentioned in the application moved by the petitioners as to the purpose for
examining the said witness. No objection was raised to the report of the
Court Commissioner by the petitioner and therefore the trial Court was
justified in rejecting the said application. She submitted that the petitioners
were only interested in delaying the proceedings and hence there was no
reason to interfere with the impugned order.
5. The suit filed by the petitioners is for possession after removal of
encroachment. The trial Court on its own motion appointed the Court
Commissioner to have a joint measurement of the properties. The report was
accordingly submitted on 12/02/2014. It is in that background that the
application in question came to be moved by the petitioners. The provisions
of Order XXVI Rule 10(2) of the Code permit any party to the suit to examine
the Commissioner. In fact in the impugned order the trial Court has
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observed that after receiving the report of joint measurement the petitioners
would have opportunity to examine the concerned officer.
6. The submission that as no objection was raised to the report of the
Court Commissioner, the same would preclude the petitioners from
examining said witness cannot be accepted. The Court having itself
appointed the Court Commissioner, it was necessary that his report was
proved in accordance with law. If said witness is examined both the parties
would have an opportunity to cross-examine the said witness in support of
their respective stands. Merely because the plaintiff had closed his evidence,
the application in question should not have been rejected.
7. In view of aforesaid, the order dated 09/10/2015 passed below
Exhibit-102 is set aside. The said application is allowed and the Court
Commissioner shall be examined to prove his report that was prepared
pursuant to the order dated 13/12/2013. In the facts of the case, the
proceedings in R.C. S. No.27/2007 are expedited and same shall be decided
by the end of December 2016.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
36-J-WP-6917-15 5/5
-: C E R T I F I C A T E :-
" I certify that this Judgment/order uploaded is a true and
correct copy of the original signed Judgment/order."
Uploaded by :
Asmita A. Bhandakkar
Personal Assistant
Uploaded on :
05/08/2016
