1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6843 OF 2009 Shri Dhondiram Shivram Shevkar. .. Petitioner Vs Shri Uttam Gotiram Shevkar & Ors. .. Respondents -- Smt. Smita Gaidhani for the Petitioner. Shri R.D. Motkari for Respondent Nos.1 to 3. -- CORAM : A.S.OKA, J. DATE : 18TH FEBRUARY, 2010 P.C: . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2. By an order dated 15th September, 2009, this Petition was ordered to be heard finally. The Petitioner is the original Plaintiff. In the suit filed by the Petitioner, a temporary injunction was granted by the trial Court by the Order dated 25th September, 2008. An appeal was preferred by the Respondents for challenging the said order which came to be dismissed. As of today, the said order of temporary injunction is in operation. By the order of temporary injunction, the Respondents were restrained from interfering with the user of the Petitioner of a road mentioned in the said order. An application was made by the Petitioner under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ). In the 2 application, it was contended that the suit road in respect of which temporary injunction has been granted has been obstructed by the Respondents. It is pointed out in the said application that the Petitioner has made a separate application for taking appropriate action against the Respondents. A prayer was made in the said application for appointment of the Court Commissioner for removal of the obstruction created by the Respondents in the suit way by throwing various articles and by planting trees. By the impugned order, the said application has been rejected by holding that the Court Commissioner cannot be appointed to remove any obstruction and moreover, other remedies are available to the Petitioner. 3. The learned counsel appearing for the Petitioner submitted that the Court was not powerless to appoint a Court Commissioner in exercise of powers under Rule 7 of Order XXXIX of the said Code. She submitted that the trial Court has taken a hyper-technical approach by ignoring that the order of temporary injunction has attained finality. 4. The learned counsel appearing for the Respondents supported the impugned order. He submitted that in a suit filed by the Respondents, a prohibitory order is passed against the Petitioner and, therefore, the order passed in favour of the Petitioner cannot be implemented. 5. After having considered the submissions, I find that the trial Court has adopted a very hyper technical approach. It is not in dispute that 3 the order of temporary injunction against the Respondents is operating as of today. The subject matter of the suit is a road in respect of which temporary injunction has been granted. Under Rule 7 of Order XXXIX of the said Code, a Court Commissioner can be appointed for preservation of the subject matter of the suit. So long as the order of injunction operates, the same has to be implemented. The Court can always appoint a Commissioner for preservation of the subject matter of the suit. It is, therefore, obvious that if any attempt is made by throwing articles on the property subject matter of the suit, for preserving the said property, a Court Commissioner can be always directed to remove articles/obstructions. 6. However, before the Court Commissioner can be directed to take steps for removal of the alleged articles of the Respondents or the obstructions made by the Respondents, it is necessary to appoint a Court Commissioner for visiting the site for ascertaining whether the suit road has been obstructed as alleged by the Petitioner. Under Rule 7 of Order XXXIX of the said Code, a Court Commissioner can be appointed for inspection of the suit property subject matter of a suit. Depending upon the report of the Court Commissioner, the trial Court will have to pass further order on the application made by the Petitioner and all contentions of the parties in that behalf will have to be kept open. 7. In view of the aforesaid discussion, the Writ Petition is 4 disposed of by passing following order. (a) The impugned order dated 21st April, 2009 is quashed and set aside. (b) The application made by the Petitioner at Exhibit-38 is restored. (c) The trial Court is directed to appoint a fit and proper person as the Court Commissioner to visit the property subject matter of the order of temporary injunction and to submit a report after inspecting the property in the light of the allegations made in the application at Exhibit-38. (d) The Court Commissioner will have to ascertain whether any obstruction has been made as alleged by the Petitioner. (e) The appointment of the Court Commissioner shall be made within a period of two weeks from the date on which an authenticated copy of this judgment is produced before the trial Court. 5 (f) The Trial Court will pass consequential orders such as fixing charges and remuneration payable to the Court Commissioner and fixing the date of submission of report of the Court Commissioner. (g) After the report is submitted, it is always open for the parties to raise objection to the said report. (h) After considering the report and after hearing the parties, the trial Court will finally decide the Application at Exhibit-38 in accordance with law as expeditiously as possible. (i) All contentions of the parties on merits are kept open. (j) The Writ Petition is partly allowed in above terms. (A.S.OKA, J) ash/