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Judgment
A.P. Lavande, J.—Mr. Diniz seeks leave to delete Article 226 from the cause title. Leave granted. Amendment to be carried out forthwith. Reply filed on behalf of Respondent Nos. 1 and 2 is taken on record.
Heard Mr. A. F. Diniz, learned Counsel for the Petitioners and Mr. H. Arsekar, learned Counsel for Respondent Nos. 1 and 2. Respondent No. 4 though served not present.
Rule. By consent of the learned Counsel for the parties heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioner challenges the order dated 12.10.2010 by which application filed by the Petitioners to substitute inspection report of Engineer Shri Deepak Halankar by the one prepared by Engineer Shri Mahendra Kakule, has been rejected. The Petitioners are the Plaintiffs in Regular Civil Suit No. 735/2003/III now pending before the Civil Judge, Senior Division at Margao filed by the Petitioners for declaration that the encroached area is part and parcel of Plaintiffs'' property and for mandatory injunction to demolish the wall and to restore the possession of the encroached area to the Plaintiffs.
Mr. Diniz, learned Counsel appearing for the Petitioners submitted that since the suit is filed on the ground that Defendants have encroached in the property of the Plaintiffs, this is a fit case in which a Commissioner deserves to be appointed by the trial court to verify whether there is encroachment by Defendants. He further submitted that in the event commissioner is appointed by the trial court to verify whether there is encroachment or not, the Petitioners would not press the present writ petition.
The Petitioners have also challenged order dated 19.10.2010 by which the learned Judge has closed the Plaintiffs'' case although the Respondents had given N.O.C. for adjournment.
Mr. H. Arsekar, learned Counsel for Respondent Nos. 1 and 2 has supported the impugned order. Mr. Arsekar submitted that the learned trial Judge has rightly rejected the prayer made by the Petitioners since the Petitioners were trying to fill up the lacunae in their evidence. He further submitted that Respondents have no objection if the Plaintiffs are allowed to lead further evidence.
I have considered the rival contentions and have perused the records.
I find merit in the submission of Mr. Diniz that since the suit is primarily for injunction on the ground that Defendants have encroached in the property of Plaintiffs and have carried out construction, this is a fit case in which trial court ought to invoke Order XXVI Rule 9 of CPC and appoint a commissioner to find out whether there is encroachment or not. Therefore, the learned trial Judge is directed to appoint a commissioner to find out if there is any encroachment and call for a report. Needless to mention that the learned trial Judge shall appoint a competent person as a commissioner to verify whether there is encroachment and the parties shall be given opportunity to cross examine the expert, after submitting the report.
In view of the order directing the Trial Court to appoint a commissioner, I am not inclined to set aside the impugned order dated 12.10.2010 in view of the submission made by Mr. Diniz.
However, in view of no objection given by the Respondents, order dated 19.10.2010 closing the evidence of the Plaintiffs'' is set aside, subject to Plaintiffs paying costs of Rs. 1500/-(Rupees one thousand five hundred only) to the Defendants. The Plaintiffs shall deposit the costs in the trial court within two weeks. Liberty to the Defendants to withdraw the same.
The trial Court shall permit the Plaintiffs to examine further witnesses, if they so desire, subject to payment of costs as directed. Needless to mention that the Defendants shall also be entitled to lead evidence in the matter. The Trial Court shall dispose of the suit in accordance with law.
Rule is made absolute in the aforesaid terms.