Case Note & Summary
The petitioners challenged an order passed by the Civil Judge Junior Division, Panaji, in Regular Civil Suit No. 11/2007 dated 03.08.2013, whereby an application filed by the respondents for appointment of a Commissioner was allowed. The dispute pertained to alleged encroachment by the petitioners into property purchased by the respondents under three sale deeds dated 21.05.1984, 30.07.1984, and 08.06.1987, comprising three contiguous plots of property surveyed under No. 11/5 of Village Batim. The petitioners contended that there was no encroachment. The learned counsel for the petitioners argued that the appointment of the Commissioner would amount to calling evidence at the instance of the Court, which is not permissible. The court, after hearing both sides, held that the appointment of a Commissioner to ascertain encroachment would indeed amount to calling evidence at the instance of the Court, and therefore the impugned order was liable to be quashed and set aside. The petition was allowed, and the order dated 03.08.2013 was quashed.
Headnote
A) Civil Procedure - Appointment of Commissioner - Order 26 Rule 9 CPC - Calling Evidence - The court held that appointment of a Commissioner to ascertain encroachment would amount to calling evidence at the instance of the Court, which is impermissible when the parties have the burden to prove their case. The impugned order was quashed and set aside. (Paras 2-5)
Issue of Consideration
Whether the appointment of a Commissioner in a civil suit for encroachment amounts to calling evidence at the instance of the Court, and whether such appointment is permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908.
Final Decision
The petition is allowed. The impugned order dated 03.08.2013 passed by the learned Civil Judge Junior Division, Panaji, in Regular Civil Suit No. 11/2007 is quashed and set aside.
Law Points
- Appointment of Commissioner
- Calling evidence
- Civil Procedure Code
- Order 26 Rule 9
- Encroachment dispute
Case Details
2014 LawText (BOM) (08) 165
WRIT PETITION NO. 722 OF 2013
Mr. Rohit Bras De Sa (for petitioners), Mr. Nigel Da Costa Frias (for respondents)
Mr. Pedro Anthony Lopes (since deceased) through legal heirs Mrs. Carminha Fernandes and Ms. Deodita Ida Lopes
Mr. Nazareth F. Lopes, Village Panchayat of Batim, Mrs. Gracy Lopes (deleted), Mr. Francis Socorro Lopes
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Nature of Litigation
Civil writ petition challenging an order allowing appointment of Commissioner in a suit for encroachment.
Remedy Sought
Petitioners sought quashing of the order dated 03.08.2013 passed by the Civil Judge Junior Division, Panaji, in Regular Civil Suit No. 11/2007.
Filing Reason
The respondents alleged encroachment by the petitioners into property purchased by them under three sale deeds.
Previous Decisions
The Civil Judge Junior Division, Panaji, allowed the respondents' application for appointment of Commissioner on 03.08.2013.
Issues
Whether the appointment of a Commissioner to ascertain encroachment amounts to calling evidence at the instance of the Court.
Submissions/Arguments
Petitioners argued that appointment of Commissioner would amount to calling evidence at the instance of the Court, which is impermissible.
Respondents contended that the petitioners have encroached into their property and a Commissioner is needed to ascertain the same.
Ratio Decidendi
Appointment of a Commissioner to ascertain encroachment would amount to calling evidence at the instance of the Court, which is not permissible under Order 26 Rule 9 of the Code of Civil Procedure, 1908.
Judgment Excerpts
The appointment of the Commissioner would amount of calling for evidence at the instance of the Court.
Procedural History
The respondents filed Regular Civil Suit No. 11/2007 before the Civil Judge Junior Division, Panaji, alleging encroachment. The respondents filed an application for appointment of Commissioner, which was allowed on 03.08.2013. The petitioners challenged this order by filing Writ Petition No. 722 of 2013 before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
