Whether the order of appointment of court commissioner can be challenged in appeal from decree?

  An order appointing a Court Commissioner can generally be challenged in the appeal from the decree, if that interlocutory order affected the decision of the case. The relevant provision is Section 105 CPC, because an order appointing a commissioner is ordinarily not an independently appealable order under Order 43 Rule 1 of CPC.

Relevant provision

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Ex Parte Commissioner, Ex Parte Decree: Can the Defendant Challenge It in Appeal?

 Q :- Lower court has appointed court commissioner without hearing defendant as he was proceeded exparte before trial court. Whether he can challenge that order before appellate court? what order the appellate court should pass in such circumstances?  

Ans:- Civil procedure does not permit justice to become one-sided merely because the defendant has been proceeded ex parte. A recurring question arises where, after setting the defendant ex parte, the trial court appoints a Court Commissioner without hearing him. Can that order be challenged before the appellate court, and if yes, what should the appellate court do? The answer lies in a careful reading of Section 96(2), Section 105 and Order XXVI Rule 18 of the Code of Civil Procedure, 1908.

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Overview of Order 39 Rule 7 of CPC

 Order 39 Rule 7 of the Code of Civil Procedure deals with "Detention, preservation, inspection, etc, of subject-matter of suit". This provision empowers courts to make specific orders regarding property that is the subject matter of litigation or connected to questions arising in the suit.

Detailed Provisions

Sub-rule (1) grants the court discretionary power to make orders on application by any party, subject to terms the court deems fit, for three specific purposes:

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How to appreciate evidence regarding fact and extent of encroachment in suit for removal of encroachment?

 The Cadesteral Surveyor, therefore, will have first to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. {Para 35}

36. If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment.

37. In the present case, the procedure, as emerging from foregoing discussion, has not admittedly been adopted.

38. The Substantial Questions of Law are answered as follows:

Answers to Substantial Questions of Law Nos. [1] and [2]:

[i] Fact of encroachment may be proved partly by oral evidence;

[ii] the extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act;

[iii] it would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required.

Answer to Substantial Question of Law No. [3]:

[v] it would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009.

Read full Judgment here: Click here

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Under which circumstances plaintiff can prove encroachment by oral evidence?

PROOF OF FACT OF ENCROACHMENT

24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009

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At what stage of trial the court should appoint a court commissioner for measurement of suit property?

 While rejecting the application, learned Trial Court has

quoted the order passed by this Court in “Sanjay Balasaheb

Kanakdande v/s Vivek Surinder Mahajan and Another” as

follows:

“3. I find that this Court has consistently taken a view that a court commissioner should not be appointed until recording of oral evidence is concluded.

6. Needless to state, after recording of oral evidence is concluded, if either of the sides prefer an application for seeking appointment of a court commissioner, the Trial Court would consider the said application on its own merits”{Para 4}

5. Admittedly, so far, only application Exhibit-5 is decided and

recording of evidence is yet to begin.

6. There is no illegality or perversity in the order impugned in

the present petition. The Trial Court has observed that after

parties conclude their evidence, the request for appointment of

Court Commissioner can be considered.

7. In view of aforesaid, no case is made out by the petitioner

to exercise extraordinary writ jurisdiction. Writ petition is,

therefore, dismissed, with liberty to the petitioner to move such

application after conclusion of recording of oral evidence.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8215 OF 2023

Chandraprabha Namdeo Magre Vs Kamalbai Girjaba Bankar and Others 

[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 17 th JULY, 2023

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Whether expert appointed by the court as per S 14A of amended Specific relief Act can be treated as court commissioner?

Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a 'judicial act which is binding' but only a 'ministerial act'. Nothing is left to the commissioner's discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioner's report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence.17 The parties can contest an expert opinion/commissioner's report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioner's report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties.

{Para 33}

34. By Act 18 of 2018, Section 14A18 has been inserted in the Specific Relief Act, 1963. The provision states that without prejudice to the provisions of the Code in any suit under the Act in question where a court considers it necessary to get expert opinion to assess it on a specific issue involved in the suit, it may engage one or more experts and direct to report to it on such issue. The court may secure the expert's attendance for providing evidence, including the production of documents on the issue. The opinion or report of the expert would form part of the record of the suit as is the case with the commissioner's report. With the court's permission, the parties to the suit may examine the expert personally in the open court on any of the matters referred to him or as to his opinion or report or as to the manner in which he has made the inspection.

36. It is held that the report of the Chartered Accountant is not an award and is to be treated as a report of a commissioner appointed by the Court Under Order XXVI Rule 11 of the Code. Objections of the Defendant to the said report will be considered in light of the aforesaid discussion and our findings, and after hearing both the sides the trial will proceed as per law.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1973 of 2022

 M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and Ors.Vs.Modi Transport Service

Hon'ble Judges/Coram:

Sanjiv Khanna and Bela M. Trivedi, JJ.

Author:Sanjiv Khanna, J.

Decided On: 11.05.2022

Citation: MANU/SC/0625/2022

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Whether the court should appoint court commissioner before recording of evidence?

 Court Commissioner is normally not to be appointed

before the recording of oral and documentary evidence. It is in the rarest

of rare case that such an order could be passed.

4 In the case in hand, the grievance of the Petitioner/ Plaintiff is

that the Defendants are trying to create a new cart way and hence, the

Court Commissioner be appointed. The Court Commissioner can neither

be appointed on an apprehension of the litigating sides, nor for collecting

evidence. In the event, the Defendants commit any encroachment, the

Petitioner can prove the said aspect by leading oral and documentary

evidence. Before the recording of evidence has commenced, the Court

Commissioner should not be normally appointed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 1096 OF 2018

SHANTABAI PRALHAD ANANTWAD Vs TAHSILDAR TAHSHIL OFFICE LATUR AND OTHERS

CORAM: RAVINDRA V. GHUGE, J.

DATE :31st January, 2018

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Whether the court should appoint court commissioner before hearing on temporary injunction application?

 Exh.5 i.e. temporary injunction

application is not yet decided. The said

application is to be decided on the basis of

prima facie case. The defendant has moved the

application for appointment of Court

Commissioner. It is for the plaintiff to prove

his own case. If after the evidence is recorded,

the Court finds it necessary to appoint

Commissioner for proper disposal of the case, the

Court at that stage can consider the application

for appointment of Court Commissioner. It would

be premature to consider the application U/o XXVI

Rule 9 of the C.P.C., at this stage i.e. prior to

decision on Exh.5. It is for the plaintiff to

prove prima facie case, balance of convenience

and irreparable loss. {Para 6}

UNREPORTED

IN THE HIGH COURT OF JUDICATURE AT

BOMBAY

BENCH AT AURANGABAD.

WRIT PETITION NO.6700 OF 2011.

 Gangaram Baban Tagad Vs  Sarubai Yashwant Tagad,

CORAM : S.V.GANGAPURWALA,J.

Date : 12.06.2013.

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Whether plaintiff can seek appointment of court commissioner to prove facts on the basis of which they are claiming relief of interim injunction?

Here in the case, Respondents have not raised any boundary dispute. It is also not their case that the Petitioners have made encroachment on their land. Conversely, they want appointment of 'Court Commissioner' to bring on record the factual position of the suit land, to prove the fact that the plots are already made and there are separate water chambers for each of the plots.

{Para 13}

14. As stated above, Respondents can definitely prove the same by producing the documentary evidence on record to that effect, which can be easily made available. Hence, the machinery of the Court cannot be used for the purpose of collecting evidence, in order to enable the Respondents-Plaintiffs to prove the facts on the basis of which they are claiming the relief of interim injunction.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1196 of 2017

Decided On: 23.01.2018

Dhondiram Nivrutti Pawar and Ors.  Vs. Laxman Khashaba Pawar and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: MANU/MH/0118/2018,2018(3) ALLMR 696

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Whether court can allow appointment of court commissioner before completion of evidence of both parties?

  This Court has consistently held

that the Court Commissioner should not be

appointed until the recording of oral

evidence is completed. Some of the orders

passed by this Court are as under :-

(1) Syed Mushtaque Ahmad Syed Ismail and

others Vs. Syed Ashique Ali Khan Hatdar [2011

(6) Mh.L.J. 334 = 2012 (2) Bom. C.R. 790],

(2) Nalubai Shinde and others Vs. Gopinath

Shinde [2011(2) Mh.L.J.991],

(3) Dnyandeo Vithal Salke and others vs.

Dagdu Kadar Inamdar, 2017 (3) Mh.L.J. 314.

(4) Chandrakant Kashinath Dike and others vs.

Smt.Satyabhama Vishwanath Dike and another,

Writ Petition No.8877/2013 (Aurangabad Bench)

decided on 17.01.2014.

(5) Dhondiba Bapu Zaware vs. Santosh Paraji

Zaware and others, Writ Petition No.4756/2014

(Aurangabad Bench) decided on 08.12.2014.

(6) Dipak Laxman Gadekar and anr. Vs. Trimbak

Ravji Shirsath, Writ Petition No.

11593/2015 (Aurangabad Bench), decided on

23/08/2017,

(7) Mahadeo s/o Vaijanath Bembalge Vs.

Chandrakala w/o Ramesh Athane, Writ

Petition No. 832/2018 (Aurangabad Bench),

decided on 04/06/2018,

(8) Dhondiram Nivrutti Pawar through L.Rs.

Vs. Laxman Khashaba Pawar and others, Writ

Petition No. 1196/2017, (Bombay Bench),

decided on 23/01/2018,

(9) Sanjay Balasaheb Khandare Vs. Vivek

Surinder Mahajan and another, Writ Petition

No. 4958/2018,(Aurangabad Bench), decided

on 29/01/2018.

(10) Bhika Mahadu Katkar and another Vs. Arjun

Bhimraj Ghode, WP No.1890/2019 (Aurangabad

Bench) decided on 09/07/2019.

(11) Sitaram Suklal Patil and another Vs.

Vasudeo Suklal Patil, WP bNo.9626/2016

(Aurangabad Bench), decided on 31/07/2017.

(12) Sarjerao Nathu Bangar and others

Vs. Namdeo Keru Bangar and others, WP

No.13441/2019 (Aurangabad Bench), decided

on 07/11/2019.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.14551 OF 2019

ASHOK HARDAYAL MEHTA Vs RAHUL TATYARAM MANDAGE AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.

DATE : 12th December, 2019.

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Whether court can appoint court commissioner if Municipal corporation has issued notice for removal of unauthorized construction?

 Learned counsel Shri Sonawane submitted that the Municipal Corporation has issued notice dated 6th August, 2018 calling upon him to demolish the illegal construction of compound wall made by the petitioner. He submitted that this application for appointment of Court Commissioner is filed with an object that the Commissioner will be able to elucidate whether construction is legal or illegal. He submitted that the application is not filed for collection of evidence. It is filed for elucidation of the matter in dispute. He submitted that notice has been issued indicating therein that petitioner has made encroachment and without measuring the land encroachment cannot be decided. He, therefore, prayed for appointment of Court Commissioner.

9. Learned counsel Shri Vaidya opposed the application contending that the Municipal Corporation has not issued notice for removal of encroachment. He submitted that the impugned notice clearly states that the petitioner has made construction without prior permission from the Municipal Corporation. For deciding whether construction is legal or illegal, appointment of Court Commissioner is not necessary. He, therefore, prayed for rejection of the application.

10. From the impugned notice dated 6th August, 2018, it cannot be inferred that the Municipal Corporation has issued notice for removal of encroachment. Notice specifically states that the petitioner has made construction of compound wall without obtaining prior permission from the Municipal Corporation. The notice nowhere indicates that the petitioner has made encroachment by constructing a compound wall. For deciding whether construction was without permission or with permission, appointment of Court Commissioner is not necessary.

Bombay High Court

JUSTICE M.G. SEWLIKAR

Amol S/o Bhalchandra Lad Vs. The Municipal Corporation Aurangabad & Anr.

WRIT PETITION NO.3876 OF 2020

6th August 2021

Citation: 2021 NearLaw (BombayHC Aurangabad) Online 1310

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Supreme Court Guidelines for speedy disposal of execution of decree

 All Courts dealing with suits and execution proceedings shall

mandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court

must examine the parties to the suit under Order X in

relation to third  party interest and further exercise the power under

Order XI Rule 14 asking parties to disclose and produce

documents, upon oath, which are in possession of the parties

including declaration pertaining to third party interest in

such properties.

3. In appropriate cases, where the possession is not in

dispute and not a question of fact for adjudication before the

Court, the Court may appoint Commissioner to assess the

accurate description and status of the property.

4. After examination of parties under Order X or

production of documents under Order XI or receipt of

commission report, the Court must add all necessary or

proper parties to the suit, so as to avoid multiplicity of

proceedings and also make such joinder of cause of action in

the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be

appointed to monitor the status of the property in question

as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree,

pertaining to

7. delivery of possession of a property ensure that the

decree is unambiguous so as to not only contain clear

description of the property but also having regard to the

status of the property.

8. In a money suit, the Court must invariably resort to

Order XXI Rule 11, ensuring immediate execution of decree

for payment of money on oral application.

9. In a suit for payment of money, before settlement of

issues, the defendant may be required to disclose his assets

on oath, to the extent that he is being made liable in a suit.

The Court may further, at any stage, in appropriate cases

during the pendency of suit, using powers under Section 151

CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or

under Order XXI of CPC, must not issue notice on an

application of third-party claiming rights in a mechanical

manner. Further, the Court should refrain from entertaining

any such application(s) that has already been considered by

the Court while adjudicating the suit or which raises any

such issue which otherwise could have been raised and

determined during adjudication of suit if due diligence was

exercised by the applicant.

11. The Court should allow taking of evidence during the

execution proceedings only in exceptional and rare cases

where the question of fact could not be decided by resorting

to any other expeditious method like appointment of

Commissioner or calling for electronic materials including

photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the

objection or resistance or claim to be frivolous or mala fide,

resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant

compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term “…in name of the

judgment- debtor or by another person in trust for him or on

his behalf” should be read liberally to incorporate any other

person from whom he may have the ability to derive share,

profit or property.

14. The Executing Court must dispose of the Execution

Proceedings within six months from the date of filing, which

may be extended only by recording reasons in writing for

such delay.

15. The Executing Court may on satisfaction of the fact that

it is not possible to execute the decree without police

assistance, direct the concerned Police Station to provide

police assistance to such officials who are working towards

execution of the decree. Further, in case an offence against

the public servant while discharging his duties is brought to

the knowledge of the Court, the same must be dealt

stringently in accordance with law.

16. The Judicial Academies must prepare manuals and

ensure continuous training through appropriate mediums to

the Court personnel/staff executing the warrants, carrying

out attachment and sale and any other official duties for

executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and

update all the Rules relating to Execution of Decrees, made under

exercise of its powers under Article 227 of the Constitution of

India and Section 122 of CPC, within one year of the date of this

Order. The High Courts must ensure that the Rules are in

consonance with CPC and the above directions, with an

endeavour to expedite the process of execution with the use of

Information Technology tools. Until such time these Rules are

brought into existence, the above directions shall remain

enforceable.{Para 42}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1659-1660 of 2021

RAHUL S SHAH  Vs  JINENDRA KUMAR GANDHI 

Dated: April 22, 2021.

Coram: S.A. BOBDE J, L. NAGESWARA RAO J, S. RAVINDRA BHAT J.

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Whether the court can refuse to rely on the court commissioner's report if he is not examined as a witness?

According to Sub-rule (2) to Rule 10 of Order XXVI, the report of the Commissioner and the evidence taken by him during the inspection shall be evidence in the suit and shall form part of the record. Therefore, there is no controversy with regard to admissibility of the report as evidence during the trial and making the report of the Commissioner part of record. However, before the report is made part of the record and taken as piece of evidence, it is open for the Court to examine the Commissioner on matters referred to him in his report or as to the manner in which he had made the investigation. It is open for the parties also to examine the Commissioner or on the manner in which he had conducted the investigation. This is the only interpretation which can be placed upon Sub-rule (2) of Rule 10. There is no other interpretation possible of this sub-rule. It is a different matter if neither the Court nor any of the parties takes any objection to the report. In such a situation the report becomes final and becomes part of the record and also can be taken as piece of evidence. But once a party objects to it specifically wants that the Commissioner be examined, the Court has no option but to examine the Commissioner. Unless that is done, the Commissioner's report can neither form part of the record nor it can become a piece of evidence which could be relied upon at the stage of disposal of suit.

The legal position cannot be disputed as stated in the rulings cited above that a court commissioner's report can be made a part of the record and exhibited if report is not objected to by the parties to the suit, but when question is regarding correctness of the contents of report, correctness of contents of the report can only be proved by examining writer/author of document as held in Bishwanath Rai v. Sachhidanand Singh reported in MANU/SC/0448/1971 : AIR 1971 SC 1949.

12. In view of the above rulings, mere production of Commissioner's report and it being admitted in evidence by itself does not prove contents of document or as to what investigations were carried out by the court commissioner. Moreover, the trial Court has observed that the commissioner's report is ambiguous and does not give clear picture.

Bearing in mind the settled legal position, it has to be concluded that both the Courts below were justified in ignoring commissioner's report along with its map on the ground of non-examination of the court commissioner as a witness.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 77 of 1999

Decided On: 05.07.2010

 Kirpashankar Mukundlal Sahu Vs.  Tilakraj Khushalchandra Wadhawan

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation: MANU/MH/0720/2010

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What is the distinction between the appointment of a Commissioner under Order 26, Rule 9 and Order 39, Rule 7 of CPC?

 The factum of possession relevant to the adjudication of the petitions filed seeking temporary injunctions shall have to be decided always and in all circumstances with reference to the evidence adduced on either side and independent of the observations made, if any by the Commissioner inter alia in his report. What has been specifically observed and noted down in the report alone merit consideration by the Court which features may elucidate the fact in dispute. The appointment of a Commissioner either under Order 26, Rule 9 of the Code of Civil Procedure (for brevity 'the Code') for localization or under Order 39, Rule 7 for detention, preservation or inspection of any property, which is the subject matter of the suit, is certainly not for the purpose of collecting evidence. Where the matter in dispute requires further elucidation a Commission can be issued under Rule 9 of Order 26 of the Code, and where it is necessary or expedient for purpose of obtaining full information or evidence, the Court may authorize the Commissioner under Order 39, Rule 7 of the Code to inspect any property in dispute to take any samples or to make any observation or to conduct any experiment for that purpose. These two provisions operate thus separately and for different purposes. One is to elucidate the fact in dispute and the other is to obtain full information and evidence mostly for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason, that can be known by the Court if and when required. Vide Kalandi Swain v. Braja Kishore MANU/OR/0022/1980 : AIR1980Ori98 . Ultimately, the fact in dispute shall have to be decided by the Court only on the basis of the material produced by the respective parties which is either further elucidated or explained fully by means of a report of the Commissioner. However, the appointment of Commissioner appears to be not permissible either under Order 29, Rule 9 or under Order 39 Rule 7 of the Code for collecting evidence.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

C.R.P. Nos. 2388 and 2393 of 2005

Decided On: 05.12.2005

 Jayalakshmi Constructions Vs. Behboob Ali Khan and Ors.

Hon'ble Judges/Coram:

T. Ch. Surya Rao, J.

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Important Notes on Civil procedure Code

1) Execution of decree -Important provisions of CPC

https://www.lawweb.in/2019/09/execution-of-decree-important.html

2) Notes on Representative suit under O 1 R 8 of CPC

https://www.lawweb.in/2019/04/notes-on-representative-suit-under-o-1.html

3) Good article on Res Judicata, stay of suit and estoppelhttps://www.lawweb.in/2018/05/good-article-on-res-judicata-stay-of.html

4) Basic concepts of CPC 4 -definitions

https://www.lawweb.in/2018/05/basic-concepts-of-cpc-part-4.html

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Whether should the court appoint a court commissioner if there is no averment regarding encroachment?

 I find it rather difficult to accede to the broad submission on behalf of the respondents that the fact that the other side has an opportunity to object to the report of the Court Commissioner and may cross-examine the Court Commissioner would obviate the examination of the justifiability of the appointment of the Court Commissioner itself. It is pertinent to note that in the case of Kolhapuri Bandu Lakade (Supra), this Court had made it clear that the suit therein was instituted for declaration and restoration of possession after removing the encroachment by the respondent/defendant therein. A positive case of encroachment at the hands of the defendants was, apparently, made out in the said case.

18. In the case at hand, as observed earlier, the tenor of the plaint indicates that the suit was instituted to pre-empt the defendants from causing encroachment over the suit land. What tilts the scale is the fact that the area of the suit land bearing survey No. 70/6 was stated to be of 15 Are. According to the plaintiffs, the defendants attempted to commit encroachment over an area admeasuring 3 are from the southern and northern side. In the context of the total area of 15 Are, the encroachment to the tune of 3 Are each from southern and northern side can be neither said to be insignificant nor in-consequential. It is not the case that even subsequent to the institution of the suit, the plaintiffs made a positive assertion that the defendants have committed encroachment over a particular area of the suit land. Observations of the learned Civil Judge in the impugned order to the effect that the plaintiffs submitted that during the pendency of the suit, the defendants encroached upon the land to the extent of 3 Are, are not borne out by either the averments in the plaint or any other material on record.

19. The fact that in the application for appointment of the Court Commissioner (Exh. 100) also, there was no whisper about encroachment at the hands of the defendants could not have been ignored by the learned Civil Judge. As narrated above, a general assertion was made in the said application that the appointment of the Court Commissioner to measure the suit land would assist the Court in the determination of the controversy on merits. In this view of the matter, it would be rather hazardous to draw an inference that the plaintiffs had instituted the suit for removal of encroachment and recovery of the possession of the portion of the suit land. Thus, the justifiability of the appointment of the Court Commissioner on the premise that there was a dispute about the encroachment over the suit land becomes questionable.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4078 of 2018

Decided On: 28.08.2019

Arjun Rambhau Dhankude Vs. Bhanudas Ramchandra Murkute

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: 2020(2) MHLJ 145

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Whether court commissioner can be appointed to play CD and to evaluate contents and report to Court?

The CD is a piece of evidence produced by the petitioner to prove his contentions in his counter statement. The appointment of a Commission is intended to play the CD, evaluate the contents and report to the Court. According to Section (3) of the Indian Evidence Act, a fact is said to be proved when after considering the matters before the court, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the particular circumstances of the case, to act upon the supposition that it exists. In other words, the court must make an opinion as to 'proved or not proved', after considering the matters before it. In short, the power of appreciation is vested with the court alone, and it can never be relegated to an Advocate Commission and the court itself must evaluate the contents of a CD. That apart, Section 75 of the CPC, specifies the purposes for which the court can issue a Commission. The purposes include; (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. The appreciation of evidence for reporting to the court is not specifically included in the said provision. We are of the opinion that no interpretation, at any stretch of imagination, can be made to include the act of appreciation of evidence for reporting to the court, within the purposes, for which a Commission can be issued, under the said provision.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 238 of 2019

Decided On: 26.08.2019

 Nishad  Vs.  Najma

Hon'ble Judges/Coram:

K. Harilal and Annie John, JJ.

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Whether court should dismiss suit for removal of encroachment relying on court commissioner report?

The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit. The Plaintiffs have been asserting encroachment by the Defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the Plaintiff not only with reference to the Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8285 of 2009

Decided On: 04.02.2019

 Ram Lal Vs. Salig Ram and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2020(1) MHLJ 170

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Bombay HC: Appointment of court commissioner can not be allowed for inspection of additions and alterations made in premises during pendancy of suit

It is well settled that what would be relevant for an eviction suit, and

relevant for the suit instituted by the petitioners/plaintiffs, is the principal

cause of action which has accrued/existed to the petitioners/plaintiffs on the

date of institution of suit so as to seek eviction of the respondent/tenant on

grounds as permissible under the Rent Act. No doubt, the provisions of

Section 28 of the Maharashtra Rent Control Act permits inspection of the

premises by the landlord after reasonable notice to the tenant, there is

nothing on record to show such requests for suit inspection of the suit

premises in a manner known to Section 28, was ever made and denied by the

respondent. It is clear that what has been sought by the petitioners/plaintiffs

is something different which cannot be merely conceived under Section 28,

namely, a request made to the Court to appoint a Commissioner and make a

report which would be surely an attempt to gather fresh evidence. The

record clearly indicates that at all material times such a inspection was

permitted by the respondents/defendants.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 7245 OF 2019

WITH

CIVIL APPLICATION NO.1482 OF 2019

IN

WRIT PETITION NO. 7245 OF 2019

Smt. Vasanti Gajanan Nerurkar  V/s.  Sudhir Vasu Shetty

CORAM : G.S.KULKARNI, J.

DATE : 25 September, 2019

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