Subhash Lingappa Wade And Others vs Ankush Rambhau @ Ramji Wade And ...
2017 Latest Caselaw 850 Bom

                                                                   54_WP371717.odt


         
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO. 3717 OF 2017

1.  Subhash Lingappa Wade
     Age: 58 years, Occu.: Agri.,
     R/o Near Zilla Parishad School,
     Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.

2.  Sumanbai Subhash Wade
     Age: 51 years, Occu.: Household,
     R/o Near Zilla Parishad School,
     Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.

3.  Ravi Subhash Wade
     Age: 26 years, Occu.: Agri.,
     R/o Near Zilla Parishad School,
     Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.

4.  Raju Subhash Wade
     Age: 22 years, Occu.: Agri.,
     R/o Near Zilla Parishad School,
     Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.                            ..PETITIONERS

               VERSUS

1.  Ankush Rambhau @ Ramji Wade
     Age: 51 years, Occu.: Agri.,
     R/o Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.

2.  Anil Rambhau @ Ramji Wade
     Age: 44 years, Occu.: Agri.,
     R/o Sundarwadi, Post. Chikalthana,
     Tq. & Dist. Aurangabad.                            ..RESPONDENTS

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                                   ....
Mr. D.A. Mane, Advocate for petitioners.
Mr. A.R. Kawade, Advocate for respondents.
                                   ....

                                                    CORAM :  S.B. SHUKRE, J.

DATED : 20th MARCH, 2017

ORAL JUDGMENT :

1. Issue notice to respondents. Mr. Kawade, learned Counsel

waives service of notice for respondents. Reply of respondents is taken on

record.

2. Rule. Rule made returnable forthwith. Heard finally by

consent of both sides.

3. This writ petition challenges the order dated 07 th March, 2017

passed by the learned Ad-hoc District Judge-2, Aurangabad, thereby

allowing the application below Exhibit 16 filed during pendency of

Miscellaneous Civil Appeal No. 30 of 2016. By the application below

Exhibit 16, appointment of Court Commissioner for carrying out

measurement of portion of land in possession of the respondents -

original plaintiffs is made.

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4. It is the submission of learned Counsel for petitioners that such

an order could not have been passed during pendency of the

Miscellaneous Civil Appeal filed against the order of temporary injunction

under Order 39 Rules 1 and 2. The scope of jurisdiction to be exercised

in such a case by the Appellate Court is confined only to examining the

legality, correctness or propriety of the order under challenge. It is also

the submission on behalf of the petitioners that there are two maps drawn

by the T.I.L.R. which are in existence and filed on record, out of which

one has been drawn at the instance of the petitioners and the other at the

behest of the respondents. When correctness of these maps is yet to be

decided in evidence, at a premature stage, the application for

appointment of yet another Court Commissioner for drawing of the

measurement map cannot be made. It is further submitted by learned

Counsel for petitioners that even prayer in application below Exhibit 16

seeks only measurement of the portion of land, which is in possession of

the respondents and does not seek measurement of the entire portion of

the land, which is not permissible in law, because the encroachment is an

issue to be determined.

5. Learned Counsel for respondents submits that there is ample

power vested in the Appellate Court for exercising its power under Order

43 Rule 1 to grant application for appointment of the Court Commissioner

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in as much as the stage at which this has been done in the instant case is

not premature. He also submits that the prayer in application below

Exhibit 16 is incomplete. It can be allowed to be completed by directing

appointment of the Court Commissioner for taking measurement of the

entire piece of land.

6. On going through the impugned order, the only impression

that one gets is of its patent illegality and being against the well settled

principles of law, as rightly submitted by the learned Counsel for

petitioners. There is no provision under Order 43 akin to the provision of

Order 41 Rule 3 of the Code of Civil Procedure, conferring similar ample

power upon the First Appellate Court to pass any order or decree, which is

necessitated by the demands of justice. In the instant case, the appeal has

been preferred against an order of temporary injunction passed under

Order 39 Rules 1 and 2 and therefore this appeal has necessarily been

filed under the provisions of Order 43 Rule 2 of the Code of Civil

Procedure. It is well settled principle of law that while exercising the

power under this provision of law, particularly when it is in respect of an

equitable relief like granting of temporary injunction, the power is

confined to no more than examining the legality, correctness or propriety

of order under challenge, the appeal being on principle only. If the First

Appellate Court is of the opinion that no temporary injunction could have

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been granted without there being sufficient reason available on record or

in the absence of another measurement carried out by the T.I.L.R., at the

most, the Appellate Court could remand the case back to the Trial Court

for deciding the application in accordance with law, after giving

appropriate liberty to bring additional material on record to the concerned

party. But, Appellate Court cannot, by itself grant liberty to the

appropriate party to bring on record fresh material while considering the

legality and correctness of the order granting temporary injunction.

Unless and until the material was available for appropriate consideration

by the Court below, the legality or correctness or otherwise of the

impugned order cannot be tested by the First Appellate Court. It appears

that this basic principle of law has been ignored by the Ad-hoc District

Judge-2, Aurangabad.

7. It is not in dispute that in the instant case, two reports of

T.I.L.R., one at the instance of the petitioners and one at the behest of the

respondents are already produced on record. The concerned T.I.L.R. is

yet to be examined as a witness and therefore these reports have not been

tested as yet for their correctness or otherwise. Unless and until their

correctness is determined, the need for having two reports of the T.I.L.R.

cannot be examined in its proper perspective by the Trial Court.

Therefore, as rightly submitted by the learned Counsel for petitioner, this

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is a premature stage for considering the application below Exhibit 16.

8. Even otherwise, application below Exhibit 16 seeks only

appointment of T.I.L.R. for measurement of only the portion of the

property and not the entire property and therefore such measurement

partially done, is not likely to render any assistance to Court in effectively

determining the controversy and as such would be an exercise in futility.

9. On all these grounds I find that the impugned order is patently

illegal. It is passed in breach of settled principles of law and therefore it

must be quashed and set aside.

10. Writ petition is allowed with cost. The impugned order dated

07th March, 2017 is quashed and set aside. Application below Exhibit 16

stands dismissed with costs. Rule made absolute in these terms.

However, liberty to file fresh application for appointment of Court

Commissioner if the need arises, is reserved for both sides.

( S.B. SHUKRE, J. ) SSD

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