Case Note & Summary
The petitioner, Kolhapuri Bandu Lakade, filed a suit (Regular Civil Suit No.513 of 2007) for declaration and restoration of possession against the respondents, alleging that the suit land was owned by him from his ancestors and that he had given a room to the respondents for residence without consideration, but they refused to return it. The respondents denied the claim, asserting that the land was given by the British Government to the Vaidu Nomadic Tribe in 1911 and that the house in their possession was owned by them from their ancestors. They also filed a counterclaim for declaration and injunction. During the suit, applications for temporary injunction were filed; the plaintiff's application was rejected and the defendant's was allowed, which was upheld in appeal and in a previous writ petition (Writ Petition No.1440 of 2009). Subsequently, the petitioner filed an application (Exhibit 35) for appointment of the City Survey Officer as a Court Commissioner, which was rejected by the trial court. The petitioner challenged this rejection in the present writ petition. The High Court, after hearing arguments, held that the dispute between the parties was not about measurement or boundaries but about title and possession. Therefore, appointment of a Court Commissioner was not necessary. The court found no illegality or perversity in the trial court's order and dismissed the petition, observing that no prejudice was caused to the petitioner as the commissioner's report would not have been binding on the court.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 9 CPC - Disputed Title and Possession - The court held that when the dispute between the parties is not about measurement or boundaries but about title and possession, appointment of a Court Commissioner is not warranted. The trial court's rejection of the application for appointment of Commissioner was upheld as no prejudice was caused to the petitioner. (Paras 6-7)
Issue of Consideration
Whether the trial court was justified in rejecting the application for appointment of a Court Commissioner when the dispute between the parties pertains to title and possession of the suit property and not merely to measurement or boundary.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order rejecting the application for appointment of a Court Commissioner. No order as to costs.
Law Points
- Appointment of Court Commissioner
- Disputed title and possession
- Civil Procedure Code Order 26 Rule 9
- Scope of commission
- Interlocutory orders
Case Details
2011 LawText (BOM) (03) 103
Writ Petition No.6497 of 2009
Mr. G.S. Godbole i/b. Mr. A.B. Tajane for the Petitioner, Mr. Rahul Kashid with Mr. Rohit Gangawane for the Respondents
Yallappa Chinappa Lakade, Decd., Thru' Pooja @ Poojari Y. Lakade & Ors.
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Nature of Litigation
Civil writ petition challenging rejection of application for appointment of Court Commissioner in a property suit.
Remedy Sought
The petitioner sought to set aside the order dated 7th July, 2009 rejecting his application for appointment of City Survey Officer as Court Commissioner.
Filing Reason
The petitioner's application for appointment of a Court Commissioner was rejected by the trial court.
Previous Decisions
The trial court rejected the plaintiff's temporary injunction application and allowed the defendant's; the appeal was dismissed; a previous writ petition (No.1440 of 2009) was disposed of on 6th March, 2009.
Issues
Whether the trial court was justified in rejecting the application for appointment of a Court Commissioner when the dispute pertains to title and possession and not measurement or boundaries.
Submissions/Arguments
Petitioner argued that appointment of a Court Commissioner was necessary to ascertain the correct position of the property.
Respondents opposed the application, contending that the dispute was about title and possession, not measurement.
Ratio Decidendi
When the dispute between the parties is not about measurement or boundaries but about title and possession, appointment of a Court Commissioner under Order 26 Rule 9 CPC is not warranted. The trial court's discretion in rejecting such an application cannot be interfered with unless it is shown to be perverse or illegal.
Judgment Excerpts
The dispute between the parties is not about the measurement or boundaries. The dispute between the parties is about the title and possession. In that view of the matter, the appointment of the Court Commissioner was not at all necessary.
No prejudice would be caused to the Petitioner, as the report of the Commissioner would not be binding on the Court.
Procedural History
The petitioner filed Regular Civil Suit No.513 of 2007 for declaration and restoration of possession. During the suit, temporary injunction applications were filed; plaintiff's application was rejected and defendant's allowed. Appeals were dismissed. A previous writ petition (No.1440 of 2009) was disposed of on 6th March, 2009. Thereafter, the petitioner filed application Exhibit 35 for appointment of Court Commissioner, which was rejected on 7th July, 2009. The present writ petition challenges that rejection.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 26 Rule 9
