Case Note & Summary
The petitioner, Bholaprasad Foudar Bharti, filed a civil suit (Regular Civil Suit No.438 of 2017) before the 3rd Joint Civil Judge, Junior Division, Kolhapur, seeking removal of encroachment allegedly made by the respondent, Kalavati Vitthalrao Khadake, on the petitioner's property. The petitioner also filed an application for interim injunction (Exhibit-5) to restrain the respondent from carrying out construction on the encroached portion, and an application for appointment of a Court Commissioner to assess the encroachment. The trial court, by order dated 6th July 2017, rejected the interim injunction application, holding that even if the respondent had no permission for construction, it was for the Planning Authority to take action, and no injunction was necessary. The petitioner's appeal (Miscellaneous Civil Appeal No.192 of 2017) was dismissed by the District Judge-7, Kolhapur, on 19th September 2017. The petitioner then approached the Bombay High Court under Article 227 of the Constitution of India. The High Court noted that the trial court had not considered the pending application for appointment of a Court Commissioner, which was crucial to determine the factual position of encroachment. The court held that in a suit for removal of encroachment, the court must appoint a Commissioner to ascertain the exact situation at the site; otherwise, if construction is allowed to continue, the nature of the suit property may change, causing irreparable loss to the petitioner. The High Court set aside the orders of both lower courts and directed that status quo be maintained in respect of the suit property until the trial court decides the application for appointment of Commissioner. The trial court was directed to decide the Commissioner application within two weeks from the date of the order.
Headnote
A) Civil Procedure - Interim Injunction - Encroachment Suit - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - In a suit for removal of encroachment, the court must consider the application for appointment of Court Commissioner to ascertain the factual position at site before deciding the interim injunction application; failure to do so and rejection of injunction without granting status quo amounts to an error in exercise of jurisdiction. (Paras 6-8) B) Civil Procedure - Court Commissioner - Appointment - Order 26 Rule 9, Code of Civil Procedure, 1908 - When a party applies for appointment of a Commissioner to assess encroachment, the court should not reject the interim injunction application without first appointing the Commissioner or at least granting status quo to prevent change in nature of the suit property, as otherwise irreparable loss may be caused. (Paras 6-8)
Issue of Consideration
Whether the courts below erred in rejecting the application for interim injunction in a suit for removal of encroachment without considering the application for appointment of Court Commissioner and without granting status quo to preserve the suit property.
Final Decision
The High Court allowed the writ petition, set aside the orders of the trial court and appellate court, and directed that status quo be maintained in respect of the suit property until the trial court decides the application for appointment of Court Commissioner. The trial court was directed to decide the Commissioner application within two weeks from the date of the order.
Law Points
- Interim injunction
- encroachment
- court commissioner
- status quo
- irreparable loss
- balance of convenience
- prima facie case
- Article 227 of the Constitution of India
- Code of Civil Procedure
- 1908
- Order 39 Rules 1 and 2
