The Bombay High Court allowed the petition and set aside the order dated 15 December 2021, by which the Petitioner’s application for appointing another Local Commissioner was rejected. A single judge bench of this Court comprising Hon’ble Justice Sandeep V. Marne held that bar of res judicata will not apply in the present case as there is no finality to the decision of the Trial Court yet due to the pendency of the appeal against its judgment before the Appellate Court.
Brief Facts:
In 2010, Plaintiff filed a suit for permanent injunction and recovery of possession of the encroached portion of land. He also filed an application under Order 26 Rule 9 of the Civil Procedure Code, 1908 (“Code”) for the appointment of a Court Commissioner to measure lands and fix boundaries. The trial Court allowed the application however, Respondents/Defendants questioned the validity of the Local Commissioner report by raising various technical objections and also about the manner in which the measurements were conducted. Therefore, the trial Court discarded the report vide its judgment and order dated 24 July 2018 to which the Plaintiff filed an appeal before the district court. In this Appeal, Plaintiff filed an application for the appointment of a Court Commissioner for the re-measurement of lands on the premise that the earlier measurements conducted were defective, but it was rejected by the impugned judgment and order dated 15 December 2021.
In this petition, the Petitioner/Plaintiff had challenged the order dated 15 December by which the Petitioner’s application for appointment of Court Commissioner for measurement of lands during the pendency of appeal was rejected.
Contentions of the Petitioner:
The learned Counsel for the Petitioner submitted that the Trial Court had discarded the report on account of objection raised by Respondents about the manner in which the measurements were conducted. Due to the finding of the Trial Court, the Plaintiff has an apprehension that even the District Court is likely to ignore the measurements report for the same reason. The learned Counsel further submitted that in such a situation, it would be necessary to re-measure the lands to present the site's clear picture before the Trial Court.
Contentions of the Respondent:
The learned Counsel for the Respondents raised the question of maintainability of the application filed by the Plaintiffs as they failed to file as per the provisions of Order 41 Rule 27 of the Code. He further submitted that allowing the application of Plaintiff would amount to res judicata as the issue with regard to the measurement of lands stands concluded between the parties and cannot be permitted to re-open. In support of his contention, he relied upon the judgment of the Apex Court in Satyadhyan Ghosal and Ors Versus Smt. Deorjin Debi and anr AIR 1960 SC 941.
Observations of the Court:
This Court observed that the very fact that the application for appointment of Court Commissioner was allowed raises a presumption that the Court needed an actual picture of the property at the site and the extent of possession of lands by the rival parties. In such a scenario, if the Appellate Court agreed with the findings of the Trial Court about the non-acceptance of the report, it would have nothing before it to assess whether there is indeed any encroachment at the site. In these circumstances, the bench finds it appropriate that the Appellate Court directs the re-measurement of land by appointment of the Court Commissioner.
In regard to the maintainability of the application, the Court noticed that Plaintiff had failed to refer to the provisions of Order 41 Rule 27 of the code. However, they held that the same could not be a ground for not taking the application out of the ambit of provisions of Order 41 Rule 27.
On the issue of res judicata, this Court finds that the case relied on by the Respondents has no applicability in the present case. The Apex Court laid down that res judicata undoubtedly is based on the need of giving finality to judicial decisions. However, in view of this Court, there is no finality attached to the decision of the Trial Court yet as the appeal against its judgment is still pending before the Appellate Court. It was also observed that in cases where Court Commissioner fails to present before the Court the correct picture prevailing at the site, the trial court itself is empowered to appoint another court commissioner, and there is no question of attracting the principle of res judicata.
The decision of the Court:
The Bombay High Court allowed the present petition and set aside the order dated 15th December 2021.
Case Title: Yasin Gulab Shikalkar vs Maruti Nagnath Aware
Coram: Hon’ble Justice Sandeep V. Marne
Case no.: WRIT PETITION NO. 7278 OF 2022
Advocate for the Petitioner: Mr. Dilip Bodake
Advocate for the Respondents: Mr. Samir Kumbhkoni
Read Judgment ;
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