Jaykrishna Ramkishor Dixit vs Baliram Shinwar Patil And Ors
2022 Latest Caselaw 7110 Bom

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                                                          16.WP.5084.2021.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

              CIVIL WRIT PETITION NO. 5084 OF 2021

Jaykrishna Ramkishor Dixit
thr. its constituted attorney
Adv. Pankaj Jaykishan Dixit                         ... Petitioner
       V/s.
Baliram Shinwar Patil & Ors.                        ... Respondents

Mr. Pankaj J Dixit, Constituted Attorney of Petitioner.


                              CORAM : NITIN W. SAMBRE, J.

DATED : 25th JULY, 2022 P.C.:

1. Heard.

2. I am informed that the suit of the petitioner/plaintiff for

eviction is decreed, in execution of which application bearing

Exhibit-19 was taken out for appointment of Court Commissioner

under provisions of Order XXXIX Rule 7 of CPC so as to have

inspection.

3. It is further claimed that alongwith the aforesaid application,

an independent application for grant of interim relief was also

moved wherein prayer was for an order of restraint against the

respondents/defendants from creating third party interest in the

suit property.

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4. The order of rejection of the such interim prayer of injunction

is informed to be a subject matter of challenge in the independent

revision which of course be decided in accordance with law.

5. However, the plea under Order XXXIX Rule 7 i.e. claim of the

petitioner is entitled for an order of appointment of Court

Commissioner is concerned, the power of attorney holder of the

petitioner has drawn support from the judgment of the Apex Court

in the matter between Rahul S. Shah vs. Jitendra Kumar Gandhi &

Ors. reported in 2021 (3) SCC 001.

6. According to him, it is mandatory to follow and grant a

prayer for appointment of the Court Commissioner.

7. I have appreciated the said submissions in the backdrop of

the observation and the reasons given by the Trial Court.

8. In wake of the above, submissions made by the power of

attorney holder of the petitioner, the observations in paragraph

no. 9 of the order impugned which begin with "The plaintiffs have

moved forged application even after the filing of the interim

application" stands deleted.

9. As regards the prayer of appointment of Court Commissioner

is concerned rightly so observed by the Trial Court, the said prayer

is moved at pre-mature stage.

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10. As the petitioner's option to move the prayer at later stage is

kept open, in view of the said observations having regard to the

reasons furnished by the Trial Court, in my opinion, no case for

interference in extra ordinary jurisdiction is made out.

11. The petition fails, as such stands dismissed with the

aforesaid observations.

          Digitally signed
ANANT     by ANANT
KRISHNA   KRISHNA NAIK


                                                              (NITIN W. SAMBRE, J.)
          Date: 2022.07.26
NAIK      20:14:04 +0530




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