Kavita Pramod Firke vs Anita Arun Dhake And Others
2021 Latest Caselaw 400 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      914 WRIT PETITION NO. 6944 OF 2020

          Kavita Pramod Firke,
          Age. 50 years, Occ. Household,
          R/o. Plot No. 48/1/1/2, Kolhenagar,
          Jalgaon, Tq. and Dist. Jalgaon.                         ...Petitioner.

                  Versus

 1.       Anita Arun Dhake,
          Age. 44 years, Occ. Household,

 2.       Kiran Arun Dhake,
          Age. 24 years, Occ. Education and Agri.,

 3.       Dipika Arun Dhake,
          Age. 21 years, Occ. Education,

          All R/o. (At present) Sanjavani Apartment,
          Block No. 1, Near Chimukale Balaji Mandir,
          Yamuna Nagar (Ayodhya Nagar),
          MIDC, Jalgoan, Tq. and Dist. Jalgaon.

 4.       Vasant Rajaram Dhake,
          Age. 57 years, Occ. Advocate,
          R/o. 2-Atharv, Plot No. 60,
          Near Sahayog Hospital Behind Court,
          Housing Society, Jalgoan, Tq. and Dist. Jalgaon.

 5.       Ashalata Pandit Patil,
          Age. 71 years, Occ. Household,
          R/o. 2-Prathamesh Apartment,
          Vidyut Colony, Jalgaon,
          Tq. and Dist. Jalgaon.

 6.       Pushpa Baliram Sarode,
          Age. 67 years, Occ. Household,
          R/o. 187, Pushpam, I.T.I. Colony,
          Shramik Nagar, Satpur, Nashik.



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 7.       Nirmala Shamrao Kale,
          Age. 64 years, Occ. Household,
          R/o. Shiddhesh Arcade, Near Gaodevi Water Tank,
          Gupte Road, Dombiwali, (W)

 8.       Shakuntala Govindrao Talele,
          Age. 62 years, Occ. Household,
          R/o. Hari Palace, Jayhind Colony,
          Dombiwali (W).

 9.       Sunil Ratanlal Mahajan (Mali),
          Age. 44 years, Occ. Agri. And Business,
          R/o. Asoda, Tq. And Dist. Jalgaon.

 10.      Aahesan Shaikh Chand Pinjari,
          Age. 49 years, Occ. Agri.,
          R/o. Pinjariwada, Asoda,
          Tq. And Dist. Jalgaon.                              ...Respondents.

          Advocate for Petitioner : Mr. V.P. Patil.
          Advocate for Respondent No. 9 : Mr. A.J. Patil.

                                          CORAM : MANGESH S. PATIL, J.

DATED : 08.01.2021

Judgment :

Heard.

2. Rule. Rule is made returnable forthwith. Learned Advocate

Mr. M.J. Patil for the contesting respondent No. 9 waives service.

With the consent of both the sides the matter is heard finally at the

stage of admission.

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3. The petitioner is the original plaintiff impugning the order

passed by the trial Court rejecting his application (Exhibit 110) for

appointment of Court Commissioner under Order XXVI Rule 9 of the

Code of Civil Procedure, for ascertaining the alleged change in the

structure of the shed erected on a suit property as described in

paragraph No. 3 of the plaint.

4. The learned Advocate for the petitioner submits that it is a suit

for general partition. The respondent No. 9 who is defendant No. 9

has illegally purchased the suit property from some of the defendants.

The petitioner had succeeded in obtaining an order of temporary

injunction on her applications (Exhibit 6 and 57) whereby, inter

alia the respondent No. 9 was restrained from changing or altering

the condition of the structure standing on the suit property. In spite

of such a direction, respondent No. 9 was indulged in breach of

injunction. In order to bring that fact on record, that is regarding the

change in the structure standing on the suit property, the request was

made for carrying out local inspection. The prayer was innocuous.

The petitioner merely wanted to bring on record the change in the

structure which could not have been otherwise brought on record

except by appointing a Court Commissioner.

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5. The learned Advocate would further submit that the whole

purpose of exercising the judicial power is to reveal the truth which is

a foundation of justice. The trial Court was excepted to be more

active when a request was made to appoint a Court Commissioner for

carrying out inspection. The learned Advocate would cite the

decision in the case of Maria Margarida Sequeria Fernandes and

Others Versus Erasmo Jack de Sequeria (Dead) through L.Rs, AIR

2012 Supreme Court 1727.

6. Per quantra, the learned Advocate for the respondent No. 9

would submit that since the petitioner is claiming a general partition

and there is no dispute as to the identity of the property, there was no

reason for carrying out any local inception by appointing a Court

Commissioner. If and when the suit would be decreed, the petitioner

would be entitled to get her share demarcated and even the executing

Court would adjust the equities.

7. He would submit that admittedly the respondent No. 9 has

purchased the suit property and the petitioner is impugning the sale

deed in his favour. If at all there is some breach as is being alleged,

the petitioner has already initiated couple of contempt proceeding

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and the issue would be decided in those proceedings. By way of the

present request, by the application (Exhibit 110), the petitioner is

seeking to collect the evidence to suit his allegations so as to enable

him to establish the contempt.

8. The learned Advocate further points out the following decisions

wherein, according to him, on similar set of facts the High Courts

have refused to consider the request for appointment of Court

Commissioner :

1. Syed Mushtaque Ahmad Vs. Syed Ashique Ali Khan,

2011 (6) Mh.L.J. 334,

2. Smt. Teena Pandey and Another Vs. Dr. Kirnesh Pandey Indore,

passed by the High Court of Madhya Pradesh Indore Bench

in MP No. 2406/2019, dated : 08.07.2019.

9. I have carefully gone through the papers. Admittedly, the

petitioner has filed the suit for general partition. She is also

simultaneously impugning the sale deed of the suit property in favour

of the respondent No. 9. Needless to state that if and when the suit

would be decreed, all the properties would be divided by metes and

bounds including the one which has been purchased by respondent

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No. 9. The super structure standing on that property in strict sence

cannot be said to be a matter in issue or a fact in the dispute. If the

petitioner is to succeed, she will certainly get her due share

irrespective of the condition of the suit property. In other words,

considering the nature of the suit, condition of the suit property is

inconsequential.

10. True it is that the trial Court has apparently injuncted the

respondent No. 9 from altering the condition of the structure standing

on the suit property and the petitioner is now making a grievance that

he has breached the injunction. Needless to state that since the

petitioner has already initiated contempt proceedings for the alleged

breach, those proceeding would take care of the grievance being put

forth.

11. The issue in the matter in hand is as to if a Court Commissioner

is to be appointed to bring on record the present structure available at

the site. As has been correctly noticed by the learned Judge while

passing the impugned order, condition of the suit property is not

material for deciding the suit. The purport for which the request is

being made for local inspection is nothing but an attempt to collect

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evidence to suit the purpose in the contempt proceedings.

12. It is the discretion which vests with a trial Judge to appoint a

Court Commissioner for local inspection under Order XXVI Rule 9 of

the Code of Civil Procedure. From the reasoning resorted to by the

learned Judge, I do not find that she has refused to exercise the

discretion injudiciously. In the circumstances the Writ Petition does

not have any merit and is dismissed.

13. At this stage both the sides unanimously request for trial to be

expedited. At the joint request, the learned trial Court shall make

endeavor to decide the suit as expeditiously as possible.

( MANGESH S. PATIL, J. )

S.P.C.