SHARAD BHASKAR THALE Vs. DRAUPADI KASHINATH PATIL

JUDGEMENT

(1.) BY this civil revision application, the petitioner challenges the order dated 8.4.1996 passed below Exh.38 by the Civil Judge, Senior Division, Alibag in Reg.Civil Suit No.87/94. The petitioner is a defendant in the suit. The petitioner-defendant submitted an application in that suit for appointment of court commissioner for inspecting the property and submitting a report to the court about the situation of the property. The application was opposed by the plaintiff. Still by an order dated 12.3.1996, the court granted the application filed by the petitioner and appointed a commissioner to visit the suit site and draw the map. Advocate Shri Wadhaokar was appointed as commissioner. However, the appointment of Shri Wadhaokar was cancelled, according to the learned counsel for the petitioner, because the plaintiff did not co-operate with the commission. Again Shri Oak, Advocate was appointed as commissioner. However, when he visited the site on 7.4.1996, the plaintiff submitted an application for adjournment and did not remain present. As a result of which the commission could not be executed. The defendant therefore, filed the application at Exh.38, wherein he narrated the entire facts, pointing out that the commission could not be executed previously because of the attitude of non co-operation adopted by the plaintiff, who had initially opposed the appointment of the commissioner. The petitioner therefore, requested the court to make appropriate orders so that the commission can be executed. However, that application was rejected by the court, observing that he had appointed commissioner, however, the commission could not be executed. In my opinion, the trial court was not justified in rejecting the application. If Shri Oak, Advocate was not willing to function as commissioner, the court could have appointed some other person to work as commissioner. Once, the court makes an order for appointment of a commissioner, parties to the suit cannot be allowed to frustrate that order by adopting an attitude of non co-operation. The plaintiff who opposed the appointment of the commissioner was not co-operating with the commission and therefore, it was the duty of the court to see that the order made by it is implemented.

(2.) IN the result, therefore, the revision succeeds and is allowed. The order impugned in this revision is set aside. The trial court is directed to appoint some other person, if Shri Oak, Advocate is not willing to work as commissioner to execute the commission appointed by the court by its order dated 12.3.96. Rule made absolute accordingly with no order as to costs.