Shri. Shabir Akbar Naikwade And ORS v. Shri. Hiralal Baburao Gujar And ORS
14-WP.2813.2012.doc Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2813 OF 2012 Shabbir Akbar Naikwade & Ors.
} Petitioners versus Hiralal Baburao Gujar & Ors.
} Respondents Mr. Sandeep Koregave for petitioners.
CORAM:
ALOK ARADHE, CJ.
DATE:
JULY 16, 2025 ORAL ORDER:
1.
In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 15th March 2012 passed by the Trial Court, by which the Trial Court allowed the application filed by the respondents for appointment of Court Commissioner for local investigation under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 (CPC). 2.
Facts giving rise to filing of the present writ petition, briefly stated, are that the petitioners filed suit for injunction, wherein the respondents filed written statement and filed an application under Order XXXIX Rule 7 of the CPC. The Trial Court allowed the said application vide the impugned order dated 15th March 2012. Hence this petition.
3.
I have heard learned counsel for the petitioners and perused the record.
14-WP.2813.2012.doc 4.
Admittedly, the respondents did not file any counter claim in the suit filed by the petitioners. The plaintiffs have to succeed on the strength of their own case and in order to claim a decree, they have to adduce evidence. Filing of the application under Order XXXIX Rule 7 of the CPC, in the facts and circumstances of the case and that too at the instance of the defendants is wholly unwarranted. The impugned order, therefore, suffers from the jurisdictional infirmity as well as voice of nonapplication of mind. 5.
In the result, the impugned order dated 15th March 2012 is quashed and set aside. Accordingly, the writ petition is allowed. JAYANT VISHWANATH SALUNKE 6.
Let a copy of this order be communicated to the Trial Court JAYANT VISHWANATH SALUNKE Date: 2025.07.17 13:52:38 +0530 forthwith.
(CHIEF JUSTICE)