Sangita Sadanand Gawankar v. Sandeep Maruti Banap
Case at a glance
Provisions considered
Key paragraphs
- Para 66. The learned counsel appearing for the petitioner prays that ad-interim relief granted by this Court may be continued for a period of eight weeks from today. By the impugned order Court Commissioner has been appointed. There is no prejudice to the petitioners. Hence, prayer…
Judgment
Mr.N.N.Gawankar i/by Mr.Arfan Sait for the petitioners. Mr.P.A.Birje for the respondent. CORAM : A.S.OKA, J. DATE : 23rd July 2009. P.C.: . Heard learned counsel appearing for the petitioners. By this writ petition under Article 227 of the Constitution of India, the original 1st to 3rd defendants have taken an exception to an order made under Rule 9 of Order XXVI of the Code of Civil Procedure, 1908 by which the Taluka Inspector of Land Records, a survey officer has been appointed as Court Commissioner. The submission of the petitioners is that the application was made by the 1st respondent plaintiff after final arguments in the suit commenced. Reliance has been placed on several 2 decisions including decisions of this Court, Sikkim High Court and Calcutta High Court in support of the contention that at such a belated stage the application could not have been entertained and that it is not permissible to allow collection of evidence by appointing of a Court Commissioner.
I have considered the submissions. The impugned order is purely interlocutory which is capable to being challenged in an appeal which may be filed against the decree, if the decree be adverse to the petitioners.
Apart from this fact, there is no prejudice to the petitioners. The petitioners can always file objections to the Court Commissioner(cid:25) s report. The petitioners can always call the Court Commissioner for cross-examination.
Assuming that the impugned order is illegal, it is well settled that jurisdiction under Article 227 of the Constitution of India cannot be invoked for interfering with each and every order which is illegal. 3
Subject to what is observed above, writ petition is not entertained and the same is rejected.
The learned counsel appearing for the petitioner prays that ad-interim relief granted by this Court may be continued for a period of eight weeks from today. By the impugned order Court Commissioner has been appointed. There is no prejudice to the petitioners. Hence, prayer for continuing stay stands rejected.
(A.S.OKA,J)
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — art. 227; Code of Civil Procedure, 1908.
Which court decided this case, and when?
Bombay High Court, on 23 Jul 2009. The bench was A S OKA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.