Case Note & Summary
The petitioners, Surel Milk & Food Processor Pvt Ltd and others, challenged the order dated 20 July 2024 passed by the learned Trial Court below Exhibit 75, which allowed the application filed by the plaintiffs (respondent nos. 1 to 4) for appointment of a Court Commissioner (T.I.L.R.) to undertake survey, measurement, and mapping of the suit property. The suit was filed in 2021 seeking mandatory injunction and removal of encroachment by the defendants. There was a precursor suit filed in 2015 for the same reliefs, which was withdrawn with liberty to file a fresh suit; in that suit, the plaintiffs' application for appointment of T.I.L.R. was rejected. The High Court held that in a suit for mandatory injunction based on title, the plaintiff must first prove entitlement through documentary evidence such as a registered sale deed or revenue records. Allowing appointment of a Court Commissioner at the initial stage would amount to collection and gathering of evidence even before the plaintiff proves the case of encroachment. The Court distinguished the decisions cited by the respondent, noting that those cases involved situations where oral evidence had already been adduced and could not conclusively prove the issue. The Court held that the Trial Court can appoint a Court Commissioner only after the witness action of both parties is over, if a dichotomy still exists regarding identification of the suit property or extent of encroachment. The impugned order was quashed and set aside, and the application under Order XXVI Rule 9 CPC was dismissed. The suit was directed to proceed on its own merits, and the Trial Court was given discretion to appoint a Court Commissioner after witness action if necessary.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Stage of Appointment - Order XXVI Rule 9 CPC - Suit for mandatory injunction and removal of encroachment - Plaintiff sought appointment of Court Commissioner at initial stage to survey and measure suit property - Held that such appointment at the outset amounts to collection of evidence before plaintiff proves title and encroachment; Court Commissioner can be appointed only after witness action of both parties if identification of property or encroachment remains disputed (Paras 4-8).
B) Civil Procedure - Burden of Proof - Mandatory Injunction - Plaintiff must first prove title and encroachment through documentary and oral evidence - Onus shifts to defendant only after plaintiff discharges burden - Appointment of Court Commissioner cannot be used to gather evidence in first instance (Paras 4-6).
C) Civil Procedure - Local Investigation - Order XXVI Rule 9 CPC - Distinction from Boundary Dispute - Plaintiff can seek remedy under Maharashtra Land Revenue Code, 1966 for boundary disputes - Court Commissioner under CPC is not a substitute for plaintiff's burden of proof (Para 5).
Issue of Consideration
Whether the Trial Court can appoint a Court Commissioner under Order XXVI Rule 9 CPC at the initial stage of a suit for mandatory injunction and removal of encroachment, before the plaintiff has adduced evidence to prove title and encroachment.
Final Decision
Writ Petition allowed. Impugned order dated 20.07.2024 quashed and set aside. Application filed by plaintiffs under Order XXVI Rule 9 CPC dismissed. Suit to proceed on its own merits. Trial Court may appoint Court Commissioner after witness action of both parties if necessary, at its discretion.
Law Points
- Appointment of Court Commissioner under Order XXVI Rule 9 CPC at initial stage amounts to collection of evidence
- Plaintiff must first prove title and encroachment through documentary and oral evidence
- Court Commissioner can be appointed only after witness action of both parties if dichotomy still exists
Case Details
2024 LawText (BOM) (8) 2061
WRIT PETITION (ST) NO. 24127 OF 2024
Mr. Ashutosh M. Kulkarni i/by Mr. Shailesh Chavan for Petitioners, Mr. Ganesh T. Jadhav for Respondent Nos. 1 to 3
Surel Milk & Food Processor Pvt Ltd & Ors.
Bhagwan Krishna Pawar & Ors.
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Nature of Litigation
Civil Writ Petition challenging order allowing appointment of Court Commissioner under Order XXVI Rule 9 CPC in a suit for mandatory injunction and removal of encroachment.
Remedy Sought
Petitioners sought quashing of the Trial Court order dated 20.07.2024 allowing plaintiffs' application for appointment of Court Commissioner.
Filing Reason
Petitioners contended that appointment of Court Commissioner at initial stage amounts to collection of evidence before plaintiffs prove title and encroachment.
Previous Decisions
Trial Court allowed the application for appointment of Court Commissioner below Exhibit 75. There was a precursor suit filed in 2015 for same reliefs which was withdrawn; in that suit, application for appointment of T.I.L.R. was rejected.
Issues
Whether the Trial Court can appoint a Court Commissioner under Order XXVI Rule 9 CPC at the initial stage of a suit for mandatory injunction and removal of encroachment, before the plaintiff has adduced evidence to prove title and encroachment.
At what stage can a Court Commissioner be appointed in a suit for mandatory injunction based on title?
Submissions/Arguments
Petitioners argued that appointment of Court Commissioner at the outset amounts to collection of evidence before plaintiffs prove their case; plaintiffs must first prove title and encroachment through documentary and oral evidence.
Respondents argued that Order XXVI Rule 9 CPC is wide enough to allow appointment at any stage; relied on Kashinath v. Purushottam, Mayuresh Sonawane, and Bhupendra Turkar to support that appointment can be made even at interim stage.
Ratio Decidendi
In a suit for mandatory injunction based on title, the plaintiff must first prove title and encroachment through documentary and oral evidence. Appointment of a Court Commissioner under Order XXVI Rule 9 CPC at the initial stage amounts to collection of evidence before the plaintiff discharges the burden of proof. Such appointment can only be made after witness action of both parties if a dichotomy still exists regarding identification of the suit property or extent of encroachment.
Judgment Excerpts
If such an Application is permitted by the Trial Court at the outset itself, then it would amount to collection and gathering of evidence in the first instance even before Plaintiffs prove the case of encroachment.
The question would be at what stage such an Application be permitted to be filed and allowed.
It is directed that after witness action i.e. the evidence of Plaintiffs and evidence in rebuttal of Defendants is over, only if the Trial Court feels at its discretion that appointment of Court Commissioner is necessary, it shall suo moto on its own motion or on the Application of any party and after assessing the evidence led by parties may appoint Court Commissioner for measurement, survey, identification etc. of the suit property if so required to decide the lis between parties.
Procedural History
Suit filed in 2021 for mandatory injunction and removal of encroachment. Plaintiffs filed application (Exh. 75) for appointment of Court Commissioner. Trial Court allowed the application on 20.07.2024. Petitioners filed Writ Petition challenging that order. High Court heard the matter on 26.08.2024 and allowed the petition, quashing the impugned order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXVI Rule 9
- Maharashtra Land Revenue Code, 1966: Rule 9 of the Boundary Dispute Rules
