DATTATRAY RAMCHANDRA WAIKAR Vs. BALUTAI @ RANJANA SURESH GAVALI

JUDGEMENT

(1.) In the present Writ Petition filed under Article 227 of the Constitution of India, the Petitioner who is the original Defendant No.1, has challenged the order dated 22/10/2018 passed by the learned Civil Judge, Junior Division, Khandala below Exhibit - 36 in Regular Civil Suit No.58 of 2013. Exhibit - 36 was filed by original Plaintiff i.e., present Respondent No.1 for appointment of Court Commissioner. It is the contention in the Application at Exhibit - 36 that earlier a lady advocate was appointed as Court Commissioner, however she has not done work properly to some extent and therefore both the parties i.e., Plaintiff and Defendant No.1 have filed objections to the said report. It is contended that it is necessary to appoint TILR as Court Commissioner. It is submitted that, if necessary, the earlier order of appointing Court Commissioner be cancelled and new Court Commissioner be appointed. The said Application is allowed by impugned order dated 22/10/2018 and TILR has been appointed as a Court Commissioner. The present Writ Petition challenging said order was filed on 30/01/2019. However, during the pendency of the Writ Petition, the Court Commissioner appointed pursuant to impugned order dated 22/10/2018 carried out Commission work on 27/05/2019 and submitted his report. This Court thereafter by order dated 06/09/2019 requested the learned Trial Court to defer the hearing of the Suit and thereafter by order dated 04/10/2019 directed the learned Trial Court not to act upon the Court Commissioner's report submitted pursuant to the impugned order.

(2.) Ms. Shraddha Pawar, learned counsel appearing for the Petitioner submitted that the earlier Court Commissioner report was not rejected by the learned lower Court by giving cogent reasons and the objections in that behalf are not considered. According to her submission, unless the earlier Commissioner's report is rejected by giving reasons, the Court will have no power to appoint another Court Commissioner. She has relied upon the judgment of the Madras High Court reported in R. Viswanathan v/s. P. Shanmugham and anr.,1985 1 MadLJ 254 to substantiate her case. She has also relied upon the judgement of this Court in Sanjay Kisan Thorat and ors. v/s. Ramchandra Parsu Thorat and anr. , 2018 3 AllMR 487, to support her submission.

(3.) Mr. Vaibhav Gaikwad, learned counsel for Respondent No.1, on the other hand, at the outset, submitted that he is not supporting the contention in the Application at Exhibit - 36 which is filed by the Respondent No.1 to the effect that lady advocate was appointed as Court Commissioner and therefore, work was not done properly. However, he states that the nature of dispute which is involved in the present suit requires that the TILR be appointed as the Court Commissioner. Learned counsel for the Respondent No.1 has also relied upon the objections submitted by both the parties to the Commissioner's report and submitted that as both the parties have raised objections to the report submitted by the earlier Court Commissioner, and therefore the said report is required to be rejected. He pointed out that TILR was appointed as the Commissioner by the impugned order and as the TILR has already submitted the report (hereinafter referred to as the "Second Commissioner's Report), the impugned order need not be interfered with, as it has been already implemented. He has relied upon the judgment of the Hon'ble Supreme Court in the case between Ram Lal and ors. v/s. Salig Ram and ors. , 2020 1 MhLJ 170, particularly paragraph nos.17 and 18 of the same. He has also relied upon the judgment of this Court in the matter between Vijay Shrawan Shende v/s. State of Maharashtra , 2009 4 AllMR 601 and submitted that in the type of dispute which is involved in the suit, TILR should have been appointed as Court Commissioner.