Bombay High Court
Sau. Kamakshi Prakash ... vs Kishor S/O Kashinath Shanbharkar on 22 July, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1142/2016
Sau. Kamakshi Prakash Palkurtiwar,
aged about 46 Yrs., Occu. Household,
R/o Ward No.1, Aheri, Tah. Aheri,
Distt. Gadchiroli. ..Petitioner.
(Ori. Plaintiff)
..VS..
Kishor s/o Kashinath Shanbharkar,
aged 40 Yrs., Occu. Household,
R/o Ward No.1, Aheri,
Tah. Aheri, Distt. Gadchiroli. ig ..Respondent.
(Ori. Defendant)
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Shri A.Y. Kapgate, Advocate for the petitioner.
Shri Rohit Joshi, Advocate for the respondent.
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CORAM : Z.A.HAQ, J.
DATED : 22.7.2016.
ORAL JUDGMENT
1. Heard Shri A.Y. Kapgate, Advocate for the petitioner - original plaintiff
and Shri Rohit Joshi, Advocate for the respondent - original defendant.
2. Rule. Rule made returnable forthwith.
3. The plaintiff has filed suit praying for decree for declaration that the
defendant has undertaken illegal construction on 5 feet approach way as shown in
the plaint map. The plaintiff has prayed for other reliefs. The trial of suit progressed
and the evidence of both the parties is recorded. At this stage, the petitioner - plaintiff
filed the application (Exh. No.100) praying that the Commissioner be appointed for
local investigation. This application is rejected by the order dated 13 th October, 2015.
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The learned Advocate for the plaintiff submitted that the learned trial
Judge has committed an error in rejecting the application on the ground that the
plaintiff is indirectly seeking to collect evidence. It is submitted that considering the
nature of controversy, the report of the Court Commissioner submitted after local
investigation would assist the Court to decide the controversy properly.
The learned Advocate for the defendant has submitted that the
application is malafide, that in the cross-examination of vendor of plaintiff it has come
on record that the alleged way claimed by the plaintiff is not meant for user of the
plaintiff, that the application is filed after recording of evidence and it is apparent
that the plaintiff is now seeking to bring on record evidence through Court
Commissioner to fill up the lacunae which remained in the evidence on behalf of the
plaintiff. It is submitted that this is not permissible.
After considering the claim made by the plaintiff in the plaint and the
facts on record, in my view, the Court Commissioner is required to be appointed for
local investigation and it cannot be said that the plaintiff is seeking to fill up the
lacunae or to collect the evidence. It cannot be doubted, at this stage, that the report
which would be submitted by the Court Commissioner will not depict the correct
picture and in any case, the parties would be at liberty to examine and cross-examine
the Court Commissioner. Therefore, the impugned order is set aside and the
application (Exh. No.100) filed by the petitioner plaintiff is allowed and the trial
Court is directed to appoint the Court Commissioner for local investigation.
4. The petitioner has challenged the order passed on application (Exh.
No.106). By this order, the trial Court rejected the prayer of the plaintiff for
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appointment of Court Commissioner to carry out local investigation and submit the
report regarding construction which the defendant started during the pendency of the
civil suit. The petitioner has not been able to place anything on record to show that
the construction started by the defendant during the pendency of the civil suit is still
going on.
The plaintiff has also challenged the order passed by the trial Court on
application (Exh. No.107) by which the application filed by the petitioner praying for
temporary injunction is rejected. The application (Exh. No.107) is rejected by the
order dated 1st December, 2015. Though the order passed on application (Exh.
no.107) is appeallable, as substantial time has lapsed, the orders passed on
application (Exh. No.106) and (Exh. No.107) are maintained and not interfered
with.
5. Hence, the following order:
(i) The order passed on application (Exh. No.100) is set aside.
(ii) The application (Exh. No.100) filed by the plaintiff before the trial Court
is allowed.
(iii) The trial Court is directed to appoint Court Commissioner as prayed for in
the application.
(iv) The orders passed on application (Exh. No.106) and (Exh. No.107) are
maintained.
(v) The petition is partly allowed.
(vi) In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
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CERTIFICATE
" I certify that this Judgment/Order uploaded is a true and correct copy of
original signed Judgment/Order".
Uploaded By : N.V. Tambaskar. Uploaded On : 29.7.2016.
Personal Assistant.
