The Application For An Appointment Of A Court Commissioner – In The High Court Of Judicature At Bombay

The then respondents(now petitioners) were unhappy with the order passed on 06.09.2021 by the Ld. 3rd Jt. CJSD. Kalyan in an application filed for appointment of Court Commissioner below Exh.61 in RCS. No.276 of 2016 be called for and after examining the legality, validity, and propriety. MILIND N. JADHAV J pronounced this Judgement on 27.01.2022 in MAYURESH SUBHASH SONAWANE V. YASHWANT BABU BHOIR AND ANR.

Shri AA Garge, skilled Counsel, standing for the Petitioner, claims that the application below Exh.5 has been waiting for decisions since February 20, 2020, when the parties finished their oral arguments and submitted their statements notes with the trial Court. The Learned Counsel contends that the impugned order is not speaking; it has not been decided on the merits; the trial court did not consider the parties’ pleadings before passing the impugned order; the original Plaintiff’s application does not refer to any encroachment by the original Defendant No.2 on the subject matter of the suit property; the original Defendant No.2 (Petitioner herein) has the necessary permission and sanction in respect of construction.

The Counsel contends that the impugned order is unreasoned and cryptic and that it was issued nearly a year and seven months after the Trial Court concluded its hearing in the Exh.5 application; the original Plaintiff intends to seek the appointment of a Court Commissioner to collect more and better evidence detrimental to the case of the original Defendant No.2 (Petitioner herein), and that the Court should not permit this.

Shri Rohan Surve, learned Counsel appearing for Respondent No. 1 (original Plaintiff), contends that it is a well-established legal position in any suit that if the Court deems a local investigation to be necessary or proper for elucidating any matter in dispute, the Court may issue a commission to such person as the Court considers appropriate to conduct the investigation and file a status report.

The original Plaintiff has made specific averments regarding illegal encroachment over the suit property, i.e., the approach road connecting to the property belonging to the answering Respondent, i.e., Survey No. 35, Hissa No.5, which has been the only approach road and mode of access/communication/transit for several years, according to the Learned Counsel. Counsel claims that this access road belongs to Thane’s Zilla Parishad, carrying 0H-03R-10P.

In this case, the Respondent, the owner of the land adjacent to the Petitioner’s, has filed a lawsuit. According to the evidence, the access road to the Respondent’s land has been closed as a result of the Petitioner’s building and the resulting encroachment. The Court must establish this fact at this interim stage for the Trial Court to issue any temporary orders until the trial.

After reviewing all the arguments from both sides, the Learned Judge contents that no intervention is required under the decree of September 6, 2021. However, to ensure fairness between the parties, the Court Commissioner is required to give notice of the day, date, and hour of the suit property inspection to the Petitioner and Respondents and any other landowner next to the suit property (the approach road). Within two weeks of the date of review of the suit property, the Court Commissioner shall visit the suit property, take photographs, conduct an independent survey, take measurements of the suit property and any intervening structures standing on the suit property (if necessary), prepare a survey map of the suit property, and file a Report with the Trial Court.

A copy of the abovementioned survey map and report created by the Court Commissioner shall be sent to the Petitioner and the interested Respondents. They will have one week from the date of receipt of the Court Commissioner’s survey map/report to file their affidavit-in-reply if any.

The Trial Court must provide both parties a hearing within one week of filing their respective statements. It will only decide the pending application under Exhibit 5 after hearing the parties on the Court Commissioner’s report. As mentioned above, the parties’ arguments are left open on the problem.

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Reviewed by Rangasree

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