Mr. S. S. Gangakhedkar, Advocate for the v. S. Kadam
Legal Reasoning
1 wp 4607-2023.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 4607 OF 20231.Chaitanya s/o Laxmikantrao Deshmukh,Age : 48 years, Occu. :Business,R/o C/o Baba Petrol Pump, In frontof Cotton Research Centre, DegloorNaka Road, Nanded.2.Anandidas s/o Laxmikantrao Deshmukh,Age : 50 years, Occu. :Business,R/o C/o Baba Tyres, In frontof Cotton Research Centre, DegloorNaka Road, Nanded... Petitioners (Orig. Deft. Nos. 1 & 2)Versus1.Dr. Savita w/o Mohanrao Bhalerao,Age : Major, Occu. : Medical Practitioner,R/o. Chikhalwadi, NandedThrough Power of Attorney HolderDr. Umesh s/o Mohan Bhalerao,Age : Major, Occu. : Medical Practitioner,R/o. Bhalerao Hospital, Gurudwara Road,Chikhalwadi, Nanded.2.Dr. Angha w/o Sanjay Ghai,Age : 53 years, Occu. : Medical Practitioner,R/o. Baba Deepsingh Nagar,Bhagatsingh Road, Nanded.3.Dr. Anuja w/o Vishwas Kulkarni,Age : 51 years, Occu. : Medical Practitioner,R/o. Mitra Nagar, Latur, Tq. & Dist. LaturThrough Power of Attorney HolderDr. Umesh s/o Mohan Bhalerao,Age : Major, Occu. : Medical Practitioner,R/o. Bhalerao Hospital, Gurudwara Road,Chikhalwadi, Nanded. 1 of 10 2 wp 4607-2023.odt4.Surendrasingh s/o Ajyabsingh Kresharwale,Age : 75 years, Occu. : Nil,R/o. Plot No. 28, Kela Market Road,In front of Cotton Research Centre, DegloorNaka Road, Nanded.5.Naseer Khan s/o Gaffar Khan,Age : 55 years, Occu. : Business,R/o. Plot No. 22, Kela Market Road,In front of Cotton Research Centre, DegloorNaka Road, Nanded.6.Dr. Manish s/o Bhaskarrao Naladkar,Age : 52 years, Occu. : Medical Practitioner,7.Sarlabai w/o Bhaskarrao Naladkar,Age : Major, Occu. : Household,Petitioner Nos. 5 and 6,R/o. Vazirabad, Near Tarodekar Market, Nanded... Respondents (Resp. Nos. 1 to 3 Orig. plaintiffs and Resp. Nos. 4 to 7 are Orig. Deft. Nos. 3 to 6.)Mr. S. S. Gangakhedkar, Advocate for the Petitioners.Mr. V. S. Kadam, Advocate for Respondent Nos. 1 to 3. CORAM : KISHORE C. SANT, J.Date on which reserved for order :14th February, 2025.Date on which order pronounced :13th March, 2025. FINAL ORDER :- .Heard by consent of the parties for final disposal at the stage ofadmission. 2.The present petition is by original defendant Nos. 1 and 2 in 2 of 10 3 wp 4607-2023.odtR.C.S. No. 479/2022 against the original plaintiffs i.e. respondentNos. 1 to 3 and other defendants. The order under challenge is anorder passed by the learned 9th Joint Civil Judge Junior Division,Nanded dated 04.02.2023 thereby allowing the application of theplaintiffs for appointment of Commissioner. By way of impugned orderthe learned Judge has appointed Cadastral Surveyor as CourtCommissioner to measure the suit properties and to demarcate theproperty allegedly encroached by the defendants. 3.The facts in short giving rise to the present petition are as under :4.The plaintiffs filed the suit for demarcation and fixation of fourboundaries by metes and bounds of the suit plots and injunctionrestraining the defendants from obstructing or interfering in thepossession of the plaintiffs over the suit plots. The defendants filedwritten statement denying any encroachment made over the property.It is stated that, the plaintiffs have not given proper measurement ofthe suit properties and prayed for dismissal. 5.The suit proceeded further. The plaintiffs filed application forappointment of a Commissioner in the suit. The learned Trial Courtheld that, the plaintiffs are not expert to ascertain factual aspect of theland and therefore, it is necessary to appoint a Cadastral Surveyor as 3 of 10 4 wp 4607-2023.odtCourt Commissioner at the cost of the plaintiffs and allowed theapplication.6.The learned advocate Mr. Gangakhedkar for thepetitioners/defendant Nos. 1 and 2 vehemently argued that, the suit isonly at the stage of framing of the issues. The stage is at too prematurestage to make an appointment of a Commissioner. The plaintiffs havenot given evidence showing any encroachment or making out a casethat, in spite of their efforts it is necessary to appoint a Commissioner.The plaintiffs have even not proved the ownership of the property tillnow. The demarcation of plot and measurement are the main reliefsclaimed in the plaint. By allowing the application, in fact, the learnedTrial Court has granted main relief in the suit. The same is notpermissible. He criticized the reasoning of the learned Trial Court. Hesubmits that, in fact, by way of appointment of a Commissioner, nowthe plaintiffs would collect the evidence. It is settled position that,Commissioner can be appointed to collect the evidence. He relied uponthe following judgments :(i)Writ Petition No. 1186/2019, NarmadabaiMannalal Agrawal Vs. Dr. Sayed Abdul Gaffar AbdulRazzak Kadri passed by this Court dated 01.07.2019. 4 of 10
Legal Reasoning
5 wp 4607-2023.odt(ii)Writ Petition No. 9853/2018, GangadharBaburao Gurav and others Vs. The State of Maharashtraand others passed by this Court dated 29.08.2018.(iii)Writ Petition No. 9089/2011, Ayyaz ShoukataliSayyed and another Vs. Mohd. Moid @ Ajamtali s/oMohd. Yasin Shaikh and others passed by this Courtdated 17.01.2012.(iv)Writ Petition No. 4756/2014, Dhondiba s/o BapuZaware Vs. Santosh s/o Paraji Zawere and others passedby this Court dated 08.12.2014.(v)Writ Petition No. 8877/2013, ChandrakantKashinath Dike & Ors. Vs. Smt. SatyabhamaVishwanath Dike & Anr. Passed by this Court dated17.01.2014.7.The learned advocate Mr. Kadam for respondent Nos. 1 to 3vehemently opposed the petition. He submits that, the application wasnot for collecting the evidence. It is in view to assist the Court so as tocome to proper conclusion. The learned Trial Court has rightlyconsidered the pleadings of the parties and it is only thereafter theorder was passed. He submits that, the Commissioner can beappointed at any stage of the proceedings. When allegation ofencroachment is made, it is very much necessary to appoint aCommissioner. 5 of 10 6 wp 4607-2023.odt8.The learned advocate for respondent Nos. 1 to 3 relied upon thefollowing judgments :(i)Mayuresh Subhash Sonawane Vs. Yashwant BabuBhoir & Anr. 1 (ii)Govardhan Vs. Sai Baba Estates 2 (iii)Writ Petition No. 1039/2024, Prabhakar s/oBaburao @ Babanrao Naik and others Vs. VitthalNamdeo Naik and other passed by this Court dated20.12.2024.(iv)Haryana Waqf Board Vs. Shanit Sarup andothers 3 . (v)Girish Vasantrao Bhoyar and another Vs. NimbajiWarluji Bambal 4 . (vi)Kolhapuri Bandu Lakade Vs. Yallappa ChinappaLakade, since deceased through Pooja @ Poojari Y.Lakade and others 5 . (vii)Kalyan Santram Kawade and others Vs.Khanderao alias Khandu Ganpati Kawade and others 6 . 9.It is no doubt that, the appointment of a Commissioner can bemade at any stage during the trial. However, the same is to be done by12022 (2) All MR 348.2DGLS (Bom.) 854.3(2008) 8 SCC 671.42009 (4) Mh.L.J. 371.52011 (3) Mh.L.J. 348.62015 (4) Mh.L.J. 429. 6 of 10 7 wp 4607-2023.odtusing the discretion of the Court in proper and judicial manner. Thesubmissions of the learned advocates therefore need to be consideredin the light of the judgments cited by the rival parties.10.In the case of Narmadabai Mannalal Agrawal (supra), this Courtby considering various judgments held that, the appointment of CourtCommissioner can be made after recording of oral and documentaryevidence is concluded.11.In the case of Ayyaz Shoukatanli Sayyed (supra), it is held that, aCommissioner can not be appointed to collect the evidence. In thatcase, even temporary injunction application was not decided and thesame was pending. The issues also were not framed and thus,considering that it was held that it would be a premature stage and theorder of appointment of a Commissioner was quashed and set aside.12.In the case of Dhondiba Bapu Zaware (supra), also theappointment of a Commissioner was set aside leaving it open to therespondents therein to move an application after issues are framed andevidence is recorded.13.So far as the judgments relied upon by the respondent Nos. 1 to3 are concerned, in the case of Haryana Waqf Board (supra), it was 7 of 10 8 wp 4607-2023.odtarising out of the second appeal which was summarily rejected. TheHon’ble Apex Court held that, it was necessary for the Court to appointa Commissioner and to get the proper demarcation of the propertydone.14.In the case of Girish Vasantrao Bhoyar (supra), it was theappointment made by the Court for appointment of a Commissioner.There is dispute of the proposition in the said judgment thatappointment of Commissioner can be made to ascertain as to who is inactual possession of the suit field.15.In the case of Kolhapuri Bandu Lakade (supra), the Courtaccepted the contention that normally appointment of a Commissionerdoes not precede the recording of the evidence. It was further heldthat, the order being within discretionary power it should be left to theTrial Court to assess the necessity of appointment of a CourtCommissioner. It is further made clear that, such appointment,however, should not be made to collect the evidence. The Court caninterfere only when grave case is made out.16.Keeping in mind the above judgments, what is clear is that thepower to appoint a Commissioner is discretionary power left with thelearned Trial Court. Normally appointment shall not be made before 8 of 10 9 wp 4607-2023.odtevidence. The appointment shall certainly not be made for collecting ofthe evidence. Keeping this in view, this Court has to consider thepresent case.17.In the present case, it is clear from the averments and thesubmissions that, the application is made at the stage where even issuesare not framed. The evidence is yet to be recorded. Further, this Courthas to consider the prayers in the suit as stated above. The prayersitself are for measurement and for demarcation of the suit plots andthereafter, for injunction. When the plaintiffs have asserted their righton the basis of sale deeds, it was necessary for them first to plead andprove their case by giving evidence. In the present case, however, theplaintiffs have not taken pains to try to prove their case and insteadhave directly filed an application for appointment of a Commissioner.18.Considering this position, this Court finds substance in thearguments of the petitioners/original defendant Nos. 1 and 2 that, theapplication is filed only for the purpose of collecting of the evidence.The judgments relied upon by the respondent Nos. 1 to 3 are thejudgments which have considered the principles broadly and havejustified the appointment of a Commissioner in facts of those cases.The broad principles would be that, no appointment be made for thepurpose of collection of evidence and normally it should not be made 9 of 10
Decision
10 wp 4607-2023.odtbefore recording of the evidence. 19.In the present case, nothing is appearing on record as to whatexceptional case is made out to appoint a Commissioner before evenframing of the issues. This Court finds that, the appointment of aCommissioner in the present case is made at premature stage. Thelearned Court below has not properly considered all the aspectsinvolved in the matter and has lightly passed an order. For all thesereasons recorded, this Court is inclined to allow the writ petition.Hence, the following order :ORDER(i)The writ petition is allowed in terms of prayer clause (B).(ii)It is open for the plaintiffs to make an application at appropriatestage. The learned Trial Court to consider the application on its ownmerits without being influenced by the observations made in this order.(iii)The writ petition is disposed of. No order as to costs. ( KISHORE C. SANT, J. ) P.S.B. 10 of 10