Bombay High CourtWP/2864/2017disposed offdismissed for default

Revji Namdeo Shinde And Another v. Sopan Manaji Shinde And Another

2018-07-30Hon'Ble Shri Justice Ravindra V. Ghuge3 pages

*1*

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 2864 OF 2017 REVJI NAMDEO SHINDE AND ANOTHER

VERSUS

SOPAN MANAJI SHINDE AND ANOTHER ...

Advocate for the Petitioners : Shri Nangare Prashant R.. Advocate for Respondents 1 and 2 : Shri Bade Patil K.D.. ...

CORAM: RAVINDRA V. GHUGE, J.

DATE :- 30th July, 2018 Per Court:

I have heard the strenuous submissions of the learned Advocates for the respective sides and have gone through the judgments delivered by this Court in Kolhapuri Bandu Lakade vs. Yallappa Chinappa Lakade and others, Writ Petition No.6497/2009 decided on 14.03.2011, Ramkrishna Santu Kakad vs. Reojee Sahadu Kakad, Writ Petition No.2749/2012 decided on 04.03.2013, Chandrakant Kashinath Dike vs. Smt.Satyabhama Vishwanath Dike, Writ Petition No.8877/2013 decided on 17.01.2014 and Balkrishna Gangabishanji Zawar vs. Azmat Khan Suban Khan, Writ Petition No.8608/2012 decided on 27.09.2016.

I am not required to advert to the entire submissions of the

*2* learned Advocates keeping in view that RCS No.406/2014 is pending adjudication and both the learned Advocates submit that if the said suit is expedited, the litigating sides would consider filing a separate application for appointment of a court commissioner after the recording of evidence is over.

The suit has been preferred by Respondent No.1/Plaintiff for seeking recovery of possession, for removal of encroachment and for seeking injunction. After the Written Statement was filed, an application (Exhibit-27) for appointment of a court commissioner was filed by the Plaintiff and the Trial Court has allowed the same by the impugned order dated 23.01.2017.

The view consistently taken by this Court in the matter of Chandrakant Dike (supra), was not cited before this Court in the matter of Balkrishna Zawar (supra). Consequentially, the view taken by this Court with regard to the refusal of appointment of a court commissioner before commencing the recording of oral evidence, was not cited. Since the learned Advocates consent for an expeditious hearing of RCS No.406/2014 with liberty to file a separate application for the appointment of a court commissioner after the recording of oral evidence is concluded, this Writ Petition is partly allowed. The impugned order dated 23.01.2017 is quashed and set aside and application Exhibit27 is disposed of.

*3* The Trial Court shall decide RCS No.406/2014 as expeditiously as possible and preferably on or before 31.08.2019. The litigating sides would extend their cooperation for the recording of oral evidence and shall refrain from seeking unnecessary adjournments.

After recording of oral evidence, if any of the litigating sides desire the appointment of a court commissioner, they would be at liberty to file such an application and the Trial Court would decide the said application on it's own merits.

kps (RAVINDRA V. GHUGE, J.)