Arun Thengane vs Madhukar Upare & Ors.

. Heard Mr. S. D. Chopde, learned Counsel for the Petitioner and Mr. A. A. Dhawas, learned Counsel for the Respondent No.1. None appeared for the Respondent No.3, though served.

By way of present Petition, challenge is to the order dated 7/4/2018 passed by the Joint Civil Judge Junior Division, Bhadrawati, District Chandrapur below Exhibit 38 in Regular Civil Suit No. 74/2016, whereby the application filed by the Petitioner for appointment of commissioner to implement the order dated 18/7/2016 passed by the trial court while deciding the application (Exhibit-25) is rejected without exercising the inherent powers to do complete justice in the matter.

Perusal of record shows that Petitioner in the pending suit for mandatory and permanent injunction filed against the Respondents sought temporary injunction vide application (Exhibit-25). It is the submission of the Petitioner that the Respondent had constructed shed, because of which, Petitioner finding difficulty to have ingress and outgress of suit property. He has taken every step including lodging police complaint, but all his efforts gone invain. Hence, by way of temporary injunction, Petitioner sought direction against the Respondent No.1 to keep open the 5 ft width South-North direction road for him for enjoyment of his own suit property. The learned trial court, by order dated 18/7/2016 allowed the application and thereby restrained Respondent No.1 temporarily from creating any sort of obstruction in the suit property.

It is pointed out by the Petitioner that though there was a specific order passed by the learned trial court while deciding the application for temporary injunction, the Respondent No.1 was avoiding to comply the order on various pretext. Therefore, the Petitioner has moved the application (Exhibit-38) before the trial court praying thereby that for compliance of the order dated 18/7/2016 passed below Exhibit-25, the Court Commissioner be appointed so that the actual dispute will be resolved and the order of the trial court directing Respondent No.1 to make clear approach road of the Petitioner’s property will be implemented in its letter and spirit.

The Respondents have strongly opposed the application before the trial court and stated in their reply that there was no way in existence on the spot and as per order below Exhibit-25, right of way in suit property is already open and that they have not obstructed any approach way as alleged by the Petitioner. According to them, the application filed by the Petitioner is misconceived and same deserves to be rejected.

The learned trial court vide impugned order dated 7/4/2018 rejected the application for appointment of Court Commissioner by holding that granting permission to appoint the Court Commissioner in the suit will amount to permit Petitioner to collect the evidence and same is not permissible under the settled principles of law. The Petitioner has assailed the said order by filing present Petition.

The Petitioner states that in certain circumstances, trial court is empowered to exercise inherent powers to do complete justice, and more particularly, when other side is not complying the order or direction of Court. The learned Counsel for Petitioner, in support of his submission, has relied upon the Judgment of this Court in the case of Nirabai J. Patil V/s Narayan D. Patil, 2004(1) Mh.L.J. 1058, wherein this Court has observed in paragraph 7 as under :

In the light of the provisions of Section 151 of the Code of Civil Procedure, whereby the inherent power has been provided to the Trial Court, is reiterated by the Judgment of this Court. Therefore, legal position is very much clear. As such Section 151 of the Code also empowers the trial court, in such circumstances, appropriate direction can be issued in the matter. Therefore, I am in agreement with the law laid down by this Court is of the opinion that when there is no provision for any particular act to be done by the trial court, then it will be appropriate to exercise the powers under Section 151 of the Code.

In the light of above, if the trial court after hearing both the parties passed the order, then it is also the duty of Court to see that same should be complied-with by the parties. If the prayer is made by the Petitioner to get complied-with by moving application for appointment of Court Commissioner, I find that there is no reason to the learned trial court to reject the application. By issuing specific direction in terms of order, Commissioner can be directed to visit the spot and submit report. Otherwise the order passed by the Court would remain a piece of paper. In such cases, Court should see that judicial discipline be maintained and party, who approached before the Court should not be left remediless and order of Court should not be remained as a piece of paper. In such circumstances, if the Court Commissioner had been appointed, order of the trial court would have been complied-with in a right and correct manner.

It is further noted that the say of the Respondent No.1 to this application is prima facie contrary to the observations made by the trial court while deciding the temporary injunction application. It is expected from the Respondent No.1 to obey and comply the order of the Trial Court, if the same was not challenged by him before the Appellate Court. Respondent No.1 cannot be permitted to approbate and reprobate in the matter, particularly when interim order is operating against him.

In the light of above, I am of the opinion that the learned trial court has committed an error by rejecting the application vide order dated 7/4/2018, consequently same deserves to be quashed and set aside. In the circumstances, I proceed to pass following order.