Whether court can appoint court commissioner in suit for injunction?

 Having heard the Learned Counsel for the parties I have considered the rival contentions. It is well settled that the powers under Order XXVI Rule 9 of the Civil Procedure Code can be invoked for appointment of the Court Commissioner to elucidate the matter in controversy. In the instant case the controversy is as regards the 100 year old trees which the Plaintiff alleges are in his property, which he apprehends that the Defendant Nos. 1 to 5 would cut without permission. The principal relief sought in the Suit is an injunction restraining the Defendant Nos. 1 to 5 from cutting the 100 year old trees. The Trial Court at the stage of considering the application Exhibit 5 though has come to a conclusion that the existence of the trees cannot be denied, observed that there has to be some clarity as to in whose agricultural land the trees are existing, whether they are on the land of the Plaintiff or the Defendant Nos. 1 to 5. It is on the said basis that the application for temporary injunction filed by the Plaintiff came to be rejected. The order passed by the Trial Court has been carried in Appeal and the said Misc Civil Appeal is pending, however the order of status-quo is operating in the said Appeal. The parties have produced material by way of 7/12 extracts as well as measurement maps which do not show the existence of the trees. However the photographs produced by the Plaintiff shown the existence of the tress. The dispute being one restricted to the cutting of trees by the Defendants and also as regards the relief of injunction sought by the Plaintiff against the Defendants, the appointment of the Court Commissioner under Order XXVI Rule 9would only result in elucidation of the matter in controversy. It is not a case where the Plaintiff has not produced any material or that there is any dispute about the ownership of the Plaintiff in so far as the land bearing Gat No. 1465 or ownership of the Defendants in so far as Gat No. 1464 is concerned. However, the said material having been found to be insufficient by the Trial Court in deciding the application Exhibit 5 filed for temporary injunction, the appointment of the Court Commissioner in such a situation cannot be said to result in collection of evidence through the medium of Court. It is well settled that to resolve a dispute regarding the boundary between two properties a Court Commissioner can be appointed (see MANU/MH/0384/2011 : 2011(3) Bom.C.R. 807, Kolhapuri Bandu Lakade Vs. Yaooappa Chinappa Lakade (deceased) through Pooja @ Poojari Y. Lakade & Ors). 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3643 of 2014

Decided On: 03.12.2014

Appellants: Dattatray Namdev Kalake
Vs.
Respondent: Bapu Bhairu Bhivungade

Hon'ble Judges/Coram:R.M. Savant, J.

Citation: 2015(1)ALLMR5, 2015(1)BomCR267, 2015(1)MhLj892

1. Rule. With the consent of the Learned Counsel for the parties made returnable forthwith and heard.

2. The short question which arises in the above Petition is whether a Court Commissioner is required to be appointed in the Suit in question.

3. The Petitioner herein is the original Plaintiff who has filed the Suit in question being Regular Civil Suit No. 222 of 2012 for an injunction restraining the Defendant Nos. 1 to 5 from disturbing the Plaintiff's possession and further for restraining the Defendants from cutting the 100 years old trees belonging to the Plaintiffs without permission as also injuncting the Defendant Nos. 1 to 5 from erasing the boundary marks between Gat Nos. 1464 and 1465 which are two lands in contention in the said Suit. The Plaintiff is concerned with land bearing Gat No. 1465 and whereas the Defendants are concerned with land bearing Gat No. 1464. The said lands adjoin to each other in as much as to the south of Gat No. 1465 is the land bearing Gat No. 1464 and therefore the Defendants land bearing Gat No. 1465 is to the North of Gat No. 1464. In the said Suit, an application for temporary injunction came to be filed by the Plaintiff and the temporary injunction sought was on the same lines as the perpetual injunction which was sought in the Suit namely that the Defendants should be restrained from cutting the 100 year old trees which are of the Plaintiff, without permission. In support of the respective assertions the parties had produced 7/12 extracts of the said Gat numbers as also two measurement maps which were prepared at the behest of the parties i.e. the Plaintiff and the Defendants. In so far as the Plaintiff is concerned, he produced the measurement map dated 26/27th May 2001 whereas the Defendants produced the measurement map dated 25th March 2009. However, in the said measurement maps, the trees which the Plaintiff claims are over 100 years old and are on his land, have not been shown. The Plaintiff had also produced photographs of his land bearing Gat No. 1465 in which photographs the existence of the trees appears. The Trial Court considered the said application Exhibit 5 and after referring to the said material on record has observed that the existence of the trees cannot be denied however, whether the trees are in the land of the Plaintiff or the Defendants, some clarity in that respect is required. The Trial Court accordingly rejected the application for temporary injunction filed by the Plaintiff by its order dated 6-11-2012.

4. Aggrieved by the said order dated 6-11-2012 the Plaintiff carried the matter in Appeal by filing Misc Civil Appeal No. 251 of 2012. In the said Appeal, an order of status-quo has been passed on 2-1-2013 and the Learned Counsel for the parties are ad-idem that the said Appeal is as yet pending. It is pending the said Appeal that the instant application Exhibit 42 came to be filed by the Plaintiff for appointment of the Court Commissioner invoking Order XXVI Rule 9 of the Civil Procedure Code. The appointment of the Court Commissioner was sought in view of the stand taken by the Defendants in their Written Statement and especially in paragraph 6 thereof it was the case of the Plaintiff that having regard to the pleadings in the Suit and having regard to the nature of the relief sought in the Suit, the appointment of the Court Commissioner was necessitated. The Trial Court considered the said application Exhibit 42 and has by the impugned order dated 13-3-2014 rejected the same. The Trial Court was of the view that the Plaintiff is claiming ownership of the trees as also the Defendants are claiming ownership of trees on the North side of the land owned by them i.e. Gat No. 1464 and therefore the Plaintiff has to prove his case by independent evidence and therefore the appointment of the Court Commissioner was not warranted. The Trial Court further observed that the appointment of the Court Commissioner was not necessitated in view of the fact that already twice earlier the Court Commissioner was appointed and the measurement maps are part of the record which can be considered for determination of dispute with respect to the property and boundaries described therein. The Trial Court has accordingly rejected the application Exhibit 42 by the impugned order dated 13-3-2014.

5. Heard the Learned Counsel for the parties. The Learned Counsel for the parties reiterate the submissions which were urged on behalf of the parties in the Trial Court i.e. the submissions for and against the appointment of the Court Commissioner. Whereas the Learned Counsel appearing for the Petitioner would contend that in view of the findings recorded at the stage of consideration of the application Exhibit 5 and having regard to the two measurement maps which are on record, the appointment of the Court Commissioner is warranted. The Learned Counsel would further contend that the Trial Court has erred in observing that the Court Commissioner has already been appointed twice earlier, which observation according to the Learned Counsel is factually incorrect.

6. Per contra the Learned Counsel appearing for the Respondent Nos. 1 to 5 would support the impugned order. The Learned Counsel would contend that since the Plaintiff and the Defendants have placed the measurement maps which they have got prepared on record, the appointment of the Court Commissioner is not warranted. The Learned Counsel would seek to place reliance on the letter dated 28-3-2012 which has been addressed by the Deputy Superintendent of Land Records, Kagal to the Defendant No. 1 Bapu Bhairy Bhiugande, wherein he has referred to the measurement of Gat No. 1465 and has informed the Defendant No. 1 that if he has any objection, he may take appropriate steps. It is based on the said letter dated 28-3-2012 the submissions of the Learned Counsel for the Respondent Nos. 1 to 5 that the appointment of the Court Commissioner is not necessitate.

7. Having heard the Learned Counsel for the parties I have considered the rival contentions. It is well settled that the powers under Order XXVI Rule 9 of the Civil Procedure Code can be invoked for appointment of the Court Commissioner to elucidate the matter in controversy. In the instant case the controversy is as regards the 100 year old trees which the Plaintiff alleges are in his property, which he apprehends that the Defendant Nos. 1 to 5 would cut without permission. The principal relief sought in the Suit is an injunction restraining the Defendant Nos. 1 to 5 from cutting the 100 year old trees. The Trial Court at the stage of considering the application Exhibit 5 though has come to a conclusion that the existence of the trees cannot be denied, observed that there has to be some clarity as to in whose agricultural land the trees are existing, whether they are on the land of the Plaintiff or the Defendant Nos. 1 to 5. It is on the said basis that the application for temporary injunction filed by the Plaintiff came to be rejected. The order passed by the Trial Court has been carried in Appeal and the said Misc Civil Appeal is pending, however the order of status-quo is operating in the said Appeal. The parties have produced material by way of 7/12 extracts as well as measurement maps which do not show the existence of the trees. However the photographs produced by the Plaintiff shown the existence of the tress. The dispute being one restricted to the cutting of trees by the Defendants and also as regards the relief of injunction sought by the Plaintiff against the Defendants, the appointment of the Court Commissioner under Order XXVI Rule 9would only result in elucidation of the matter in controversy. It is not a case where the Plaintiff has not produced any material or that there is any dispute about the ownership of the Plaintiff in so far as the land bearing Gat No. 1465 or ownership of the Defendants in so far as Gat No. 1464 is concerned. However, the said material having been found to be insufficient by the Trial Court in deciding the application Exhibit 5 filed for temporary injunction, the appointment of the Court Commissioner in such a situation cannot be said to result in collection of evidence through the medium of Court. It is well settled that to resolve a dispute regarding the boundary between two properties a Court Commissioner can be appointed (see MANU/MH/0384/2011 : 2011(3) Bom.C.R. 807, Kolhapuri Bandu Lakade Vs. Yaooappa Chinappa Lakade (deceased) through Pooja @ Poojari Y. Lakade & Ors). The Trial Court as can be seen from the impugned order has proceeded on an erroneous premise that on two earlier occasions the commissioner was appointed. The Trial Court by observing so seems to be referring to the measurement maps produced by the Plaintiff and the Defendants. The said measurement maps were prepared on the request of the Plaintiff and the Defendants and were not prepared by any Court Commissioner which was appointed by the Court. The reliance placed by the learned Counsel for the Respondent Nos. 1 to 5 on the letter dated 28-3-2012 is also misplaced, the said letter is addressed to the Defendant No. 1 in respect of the measurement of the Plaintiff's land Gat No. 1465 and informing the Defendant No. 1 of the said measurement. In my view, the said letter can hardly support the case of the Defendants that the appointment of the Court Commissioner is not necessary.

8. In my view, for the afore stated reasons, the impugned order rejecting the application for appointment of the Court Commissioner is required to be quashed and set aside and is accordingly quashed and set aside. The TILR, Kagal is appointed as Court Commissioner he will carry out the commission work in terms of the prayers sought in the said application Exhibit 42. In so far as prayer clause (c) of the said application is concerned, the Petitioner would be at liberty to file a separate application, contingent upon the report of the Court Commissioner. The Petition is allowed to the aforesaid extent. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petition.

9. The parties to appear before the TILR on 17th December, 2014. The TILR to thereafter fix the schedule as per his convenience by giving pre intimation to the parties.

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