Case Note & Summary
The petitioner, Shyam Janardan Chaoudary, filed a writ petition before the Bombay High Court, Nagpur Bench, aggrieved by the rejection of his application for appointment of a Court Commissioner by the trial court. The petitioner was the plaintiff in a suit for eviction of the respondents (defendants) from an allegedly encroached portion of his house property. The plaintiff claimed that the defendants had encroached upon a portion marked as 'v c d M' admeasuring 4 x 10 ft. The plaintiff had described the suit property by boundaries and measurements, referred to a registered sale deed dated 11.7.2000, and produced a map drawn to scale. He sought appointment of a Court Commissioner to draw an authentic map or plan to scale indicating the encroachment, if any, to assist the trial court in deciding the real controversy. The trial court rejected the application by order below Exh.31. The High Court, relying on its earlier ruling in Kolhapuri Bandu Lakade vs. Yallappa Chinappa Lakade, 2011 (3) Mh.L.J. 348, held that appointment of a Court Commissioner is necessary to assist the court in determining the disputed boundaries and encroachment. The court observed that a competent Court Commissioner can draw a map or plan which, if agreed between the parties, would meaningfully assist the trial court. The High Court set aside the impugned order and directed the trial court to appoint a Court Commissioner, preferably the City Surveyor, to draw a map or plan to scale indicating the encroachment, if any. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Encroachment Dispute - Order 26 Rule 9 CPC - The plaintiff sought appointment of a Court Commissioner to draw a map or plan to scale indicating alleged encroachment by defendants - The trial court rejected the application - The High Court held that appointment of a Court Commissioner can assist the trial court in deciding the real controversy, especially when boundaries and measurements are disputed - The Court Commissioner can draw an authentic plan which, if agreed between parties, would meaningfully assist the court - The impugned order was set aside and the trial court was directed to appoint a Court Commissioner (Paras 2-4).
Issue of Consideration
Whether the trial court was justified in rejecting the application for appointment of Court Commissioner in a suit for encroachment where boundaries and measurements are disputed.
Final Decision
The High Court allowed the writ petition, set aside the impugned order below Exh.31, and directed the trial court to appoint a Court Commissioner, preferably the City Surveyor, to draw a map or plan to scale indicating the encroachment, if any, by or on behalf of the defendants. The trial court was to decide the suit expeditiously. No order as to costs.
Law Points
- Appointment of Court Commissioner
- Encroachment dispute
- Assistance to trial court
- Authentic map or plan
- Agreed plan between parties
