Case Note & Summary
The petitioners, who are defendants in a Regular Civil Suit for partition and separate possession, challenged an order dated 20.11.2010 passed by the Civil Judge, Junior Division, Saoli, below Exhibit 77. By that order, the trial court allowed the respondent-plaintiff's application for appointment of a Court Commissioner to measure Block No.474 of village Dongargaon (Mhaske) and directed the TILR, Saoli or the concerned authority to carry out the measurement. The petitioners contended that the application was allowed without issuing any notice to them, thereby violating the principles of natural justice. The respondent argued that the order was interlocutory and no prejudice was caused. The High Court held that the order was passed ex-parte without notice to the petitioners, which is a gross violation of natural justice. The court set aside the impugned order and remanded the matter to the trial court for fresh consideration of the application after hearing both sides. The court directed the trial court to decide the application within two months from the date of receipt of the order.
Headnote
A) Civil Procedure - Natural Justice - Ex-parte Order - Order 26 Rule 9 of Code of Civil Procedure, 1908 - Application for appointment of Court Commissioner for measurement of land allowed without notice to opposite party - Held that such order is in gross violation of principles of natural justice as the opposite party must be heard before any order is passed - Order set aside and matter remanded for fresh hearing (Paras 1-3).
Issue of Consideration
Whether the trial court could allow an application for measurement of land by appointing a Court Commissioner without issuing notice to the other side, thereby violating principles of natural justice.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 20.11.2010, and remanded the matter to the trial court for fresh consideration of the application after hearing both sides. The trial court was directed to decide the application within two months from the date of receipt of the order.
Law Points
- Natural Justice
- Right to be Heard
- Order 26 Rule 9 CPC
- Ex-parte Order
- Civil Procedure Code
Case Details
2011 LawText (BOM) (07) 43
Writ Petition No.5972 of 2010
N.B.Bargat for petitioners, D.L.Dharmakari for respondent
Bandu s/o Madhao Bangre, Smt.Anusaya wd/o Madhao Bangre, Sau.Shobha w/o Yadao Harshe, Sau.Rekha w/o Ramesh Faye
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Nature of Litigation
Civil writ petition challenging an interlocutory order in a partition suit.
Remedy Sought
Petitioners (defendants in the suit) sought setting aside of the order allowing measurement of land without notice to them.
Filing Reason
The trial court allowed the respondent-plaintiff's application for measurement of land by a Court Commissioner without issuing notice to the petitioners, violating principles of natural justice.
Previous Decisions
The trial court passed the order dated 20.11.2010 below Exh.77 allowing the application for measurement.
Issues
Whether the trial court could pass an order on an application for measurement of land without notice to the opposite party, violating principles of natural justice.
Submissions/Arguments
Petitioners argued that the application was allowed without any notice to them, violating natural justice.
Respondent argued that the order was interlocutory and no prejudice was caused.
Ratio Decidendi
An order passed on an application for appointment of a Court Commissioner for measurement of land without notice to the opposite party is in gross violation of principles of natural justice and cannot be sustained.
Judgment Excerpts
This petition challenges the order dated 20.11.2010 passed below Exh.77, by the Civil Judge, Junior Division, Saoli.
The application Exh.77 has been allowed and TILR, Saoli or the concerned authority is directed to measure Block No.474 of village Dongargaon (Mhaske).
The order has been passed without issuing any notice to the petitioners, which is in gross violation of the principles of natural justice.
Procedural History
The respondent-plaintiff filed Regular Civil Suit for partition and separate possession. During the suit, the respondent filed application Exh.77 for measurement of land. The trial court allowed the application ex-parte on 20.11.2010. The petitioners challenged this order by filing the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
