Bombay High Court
Rameshwar Shravan Ghavat vs Babarao Keshaorao Rane And ... on 15 June, 2021
Bench: A.S. Chandurkar
22-J-WP121.19.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.121 OF 2019
Rameshwar Shravan Ghavat
Aged 71 years, Occ. Agriculturist
R/o Kasamur (Samda), Tah. Daryapur,
District Amravati ... Petitioner
Vs.
1. Babarao Keshaorao Rane
Aged 65 years, Occ. Agriculturist
R/o Kasamur (Samda), Tah. Daryapur,
District Amravati
2. Shyam Rameshwar Ghavat
Aged 35 years, Occ. Kotwal
R/o Kasamur (Samda), Tah. Daryapur,
District Amravati
Shri A. A. Dhawas, Advocate for petitioner.
Shri P. S. Patil, Advocate for respondent No.1.
CORAM :- A.S.CHANDURKAR, J.
DATED :- JUNE 15, 2021
ORAL JUDGMENT
Rule. Heard finally considering the short issue involved.
The petitioner is the defendant No.2 in the suit for perpetual
injunction as filed by the respondent No.1 herein. It is the case of the
plaintiff that he is using the way as shown in the suit map by letters
O, P, Q, R, O. The defendants having caused obstruction to the same
the plaintiff approached the Civil Court with the aforesaid suit. The
parties led evidence before the trial Court and the plaintiff with a view
to prove his case had a map drawn from one Shri Gawli. After
conclusion of the evidence when the suit was fixed for final arguments
the plaintiff moved an application below Exhibit-63 praying that since
Shri Gawli who had drawn the map had expired and as the plaintiff
sought to bring on record the position prevailing at the site it was
necessary to examine the Court Commissioner. This application was
opposed by the defendants by stating that the plaintiff had examined
the son of Shri Gawli and the application at Exhibit-63 had been
moved when the suit was fixed for final hearing. By the impugned
order the trial Court allowed the application below Exhibit-63 by
observing that since the suit was based on alleged illegal construction
it was necessary to gather the actual position on the spot and to know
whether so called portion had been constructed by the defendants.
This order is the subject matter of challenge at the instance of the
defendant No.2.
2. Shri A. A. Dhawas, learned counsel for the petitioner that the
parties having led evidence and the plaintiff having closed his side on
23/04/2018 by filing pursis at Exhibit 50, the plaintiff was not
justified in moving the application below Exhibit-63 on 22/10/2018
when the case was fixed for final arguments. Placing reliance on the
decision in Shaikh Isak s/o Shaikh Amir vs. State of Maharashtra and Anr.
2011(3) ALL MR 185 it was submitted that the plaintiff intended to fill
the lacunae that had been left and hence the Court Commissioner was
sought to be appointed. According to him the parties having led the
evidence and the suit being at the stage of final arguments the
application was liable to be rejected.
3. Shri P .S. Patil, learned counsel for the respondent No.1 on
the other hand supported the impugned order and by placing reliance
on the decision in Dattatray Kashinath Mandlekar vs. Changdeo Dagdu
Khule and ors. 2018 (6) ALL MR 540 submitted that as the plaintiff
intended to remove the defect in the plaint and wanted to properly
describe the suit property, such application was moved. He further
submitted that the commission was executed on 15/01/2019 by giving
due notice to the parties. However the defendant No.2 remained
absent. It was submitted that since the suit was for removal of
encroachment such application was rightly allowed and there was no
reason to interfere with the impugned order. He therefore submitted
that the writ petition was liable to be dismissed.
4. Having heard the learned counsel for the parties and having
perused the material on record it is an undisputed fact that after the
parties led evidence and closed their respective sides, the plaintiff on
22/10/2018 moved the application below Exhibit-63 seeking
appointment of the Court Commissioner. In the said application it
has been stated that Shri Gawli who had drawn the map had expired
and hence he could not be examined. At the stage of final arguments
the plaintiff wanted to bring on record the actual position existing at
the site. It is seen from the reply filed by the defendants that the
plaintiff by examining the son of Shri Gawli at Exhibit-43 had brought
on record the map prepared by his father. This being the only reason
for filing the application, the trial Court was not justified in allowing
the application at Exhibit-63 for bringing on record the actual position
on the spot. The parties having led evidence and there being no
exceptional case warranting such application to be moved at the stage
of final arguments the trial Court was not justified in passing the
impugned order. Though it was urged that the plaintiff intended to
remove the defect in the pleadings by resorting to the provisions of
Order VII Rule 3 of the Code of Civil Procedure, 1908 (for short, 'the
Code') there is no such reference to this aspect made in the application
at Exhibit-63. Hence reliance placed on the decision in Dattatraya
Kashinath Mandlekar (supra) does not assist the case of the plaintiff.
On the contrary the observations made in Shaikh Isak (supra) support
the stand of the defendant No.2.
5. It is thus found that the trial Court exercised its jurisdiction
with material irregularity by allowing such application under Order
XXVI Rule 9 of the Code when the suit was fixed for final arguments.
The impugned order being unsustainable, the same is liable to be set
aside. Accordingly the order passed below Exhibit-63 on 02/11/2018
is quashed and set aside. The trial Court shall decide the suit on the
basis of the evidence led by the parties on its own merit without being
influenced by any of the observations made in this order. All questions
on merit are kept open.
The Writ Petition is allowed and disposed of. Rule is made
absolute in aforesaid terms. The parties shall bear their own costs.
JUDGE
Asmita
