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Judgment
Manish Pitale, J
By this Writ Petition, the Petitioners have challenged Order dated 25.01.2022 passed by the Court of Civil Judge, Junior Division, Panaji, whereby, a
direction has been given on an application filed by the Respondent-Society (original Plaintiff).
The Respondent-Society has filed a Suit against the Petitioners herein for injunction and other reliefs, claiming that the Petitioners have sought to
undertake illegal construction thereby threatening the structural stability of the apartment in question and the entire structure also. These allegations
are stoutly denied by the Petitioners.
In the backdrop of such a dispute, the Respondent-Society moved the aforesaid application with a prayer that Court Bailiff may be directed to take
pictures of ongoing construction being undertaken by the Petitioners and to submit a report regarding the same. By the impugned Order, the aforesaid
Court directed the Plaintiff i.e. Respondent-Society to take pictures with the assistance of the Bailiff. It is further recorded that since the Bailiff is not
an expert, the Bailiff will ensure that photos are taken to ascertain status and clarify the matter.
Mr. S. D. Lotlikar, learned Senior Counsel, vehemently submitted that the impugned order is widely worded and it has issued a direction which is
not even sought by the Respondent-Society. When the application itself sought a direction for the Court Bailiff to take photographs of the alleged
ongoing construction, the aforesaid Court directed the Plaintiff to take pictures with the assistance of the Bailiff. It is submitted that photographs are
sought to be taken not only from the outside but from the inside of the apartment, which is in gross violation of the privacy of the Petitioners. It is also
contended that, according to the Petitioners, the Society does not exist as there is no record of meetings, etc., of the Society. On this basis, it is
submitted that the impugned order deserves to be set aside.
When this Petition was listed yesterday i.e. 01.02.2022 for consideration, Mr. Abhay Nachinolkar, learned Counsel appeared on behalf of the
Respondent. This Court heard the Counsel and it was recorded in the Order passed by this Court yesterday (i.e. 01.02.2022), that, the learned Senior
Counsel appearing on behalf of the Petitioners, made a statement that the Petitioners would be ready for inspection of the apartment by a Court
Commissioner and photographs being taken by such Court Commissioner including the interiors of the apartment in the context of the allegations of
illegal construction being undertaken by the Petitioners. Mr. Abhay Nachinolcar, learned Counsel, also submitted that he would take instructions in that
regard from the Respondent-Society. The Petition was directed to be listed today, i.e. 02.02.2022.
Today, when the Petition is called out for hearing, Mr. Lotlikar, learned Senior Counsel submitted that this Court may appoint a lady Commissioner
and that only the said Commissioner may be permitted to enter the apartment in question for taking photographs and for submitting report.
On the other hand, Mr. Abhay Nachinolcar, learned Counsel, submitted that a lady Commissioner may be appointed but the inspection of the
apartment and the photographs may be taken by such Commissioner in the presence of a lady representative of Respondent-Society and also in the
presence of the Petitioners. It is submitted that the allegations regarding non-existence of the Society are not relevant at this stage as the matter is still
pending before the aforesaid Court.
Having heard the learned Counsel appearing for the rival parties in the backdrop of the allegations made in the Suit filed by the Respondent-Society,
it would be in the interest of justice, that a Court Commissioner is appointed. There is substance in the contentions raised on behalf of the Petitioners
that the Court Commissioner ought to be lady. It is only in the interest of justice that a Court Commissioner carries out the exercise of inspection of
the apartment and take photographs inside and outside of the apartment in the presence of not only the Petitioners, but also in the presence of a lady
representative of the Society.
In view of the above, the Writ Petition is partly allowed. The impugned order is modified and following directions are given :
(a) On a joint request made by the learned Counsel appearing for the rival parties, on instructions, Ms. Annelise Fernandes, learned Advocate, is
appointed as a Commissioner to visit the apartment in question.
(b) The Commissioner shall take photographs of the apartment from the inside and the outside in the backdrop of the allegations made by the
Respondent-Society.
(c) The Commissioner shall carry out the inspection and the exercise of taking photographs in the presence of the Petitioners (original Defendants)
and a lady representative duly authorized by the Respondent-Society (Original Plaintiff).
(d) The Commissioner shall submit the photographs and report regarding the status of ongoing/completed construction in the apartment in question
before the Court below within a period of two weeks from today.
The Writ Petition is disposed of.
The parties shall place the Order passed today by this Court before the Court below where the Suit is said to be listed for consideration tomorrow,
i.e. 03.02.2022.
All concerned to act on the basis of an authenticated copy of this order.