1 wp5839-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5839 OF 2011 Aminabai w/o Abdul Hussein Eusuf Ally Contractor and others .. Petitioners Versus J.A. Gomes and others .. Respondents Mr. S. A. Mudbidri, for the Petitioner Mr. Deepak J. lulia for respondent no.3 CORAM: R. M. BORDE, J. DATED : 24th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. With the consent of the learned counsel appearing for the parties, taken up for final disposal at the admission stage. 3. An unregistered Chamber Summons taken out by the original plaintiffs has been rejected by the Judge, City Civil Court, Greater Bombay, in view of the order passed on 4th July, 2011 and the said order is a subject matter of challenge in this petition, presented under Article 227 of the Constitution of India. 4. It is not disputed that the District Inspector of Land Records (DILR) was appointed to take out the measurement plan 2 wp5839-11.sxw and submit a report during the pendency of the proceedings. The DILR has accordingly submitted the measurement plan on 11thApril, 2005. During the cross examination of defendant no.1, he was confronted with the measurement plan drawn by the DILR and the same has been taken on record and exhibited as Exh.40 provisionally, subject to objection that may be raised by the defendants. The defendants have raised objection to the evidence in the form of 'measurement plan' drawn by and submitted by the DILR on 11th April, 2005. In the facts and circumstances, it was felt necessary to call the witness i.e. DILR to prove the measurement plan on record. 5. It is stated that the recording of evidence of the plaintiffs is over and the plaintiffs have presented an evidence close purshis on 20th October, 2010. The defendants' side have also led evidence and the same was closed on 14th March, 2011. 6. The report of the DILR dated 11th April, 2005 has been already placed on record and marked Exh.40 for convenience. 7. It is the contention of the respondents that the Chamber Summons taken out by the plaintiffs has been rightly turned down by the trial court since the earlier unregistered Notice of Motion was also turned down by the City Civil Court. An Appeal From Order was presented raising chllange to the order passed on the 3 wp5839-11.sxw Notice of Motion. However, the Appeal Form Order came to be dismissed. The plaintiffs have, thereafter, taken recourse by taking out a Chamber Summons for calling witness. 8. While deciding the Chamber Summons, the learned Judge of the City Civil Court has observed in paragraph Nos. (8) thus: "8. I have also gone through the order passed by my Ld. Predecessor dated 22/3/2011 in the unregistered Notice of Motion (order was passed in the roznama). It is true that the issue about maintainability of Notice of Motion was neither agitated nor gone into. However, it is clear that my Ld. Predecessor by considering the conduct of the plaintiffs have refused the leave. It is not in dispute that the said unregistered Notice of Motion was being moved at the argument stage. It means that the plaintiffs have closed their evidence. The defendant No.3 has also closed his evidence. My Ld. Predecessor has felt that allowing the prayer in the unregistered Notice of Motion will not be proper. It is also true that this Court being of the same jurisdiction as that of my Ld. predecessor, I think it will not be proper on my part to grant the prayers made in the present Chamber Summons. It is true that in the case wherein there is grievance of encroachment is being made and when the DILR is being appointed as Court Commissioner, his evidence is material for deciding the controversy." 9. It is true that in the case wherein there is grievance in respect of encroachment being made and when the DILR was appointed to donduct measurement, his evidence is material for deciding the controversy. Although the learned judge of the city Civil Court was of the view that the evidence of the witness is material and necessary for deciding the controversy involved in 4 wp5839-11.sxw the matter, he proceeded to turn down the chamber summons only on the ground that the earlier unregistered notice of motion has been rejected by his learned predecessor. 10. In the facts and circumstances of the case and considering the issue involved in the matter, I deem it appropriate to cause interference in the order passed by the trial Court. 11. It was found by the learned Judge of the City Civil Court that the evidence of the witness-DILR is material and is necessary to decide the controversy involved in the matter. In this circumstances, the learned Judge ought to have proceeded to issue chamber summons and ought to have permitted the plaintiffs to examine the witness. 12. It cannot be disputed that the report tendered by the DILR is already placed on record and marked as Exh.40, provisionally. The defendants have not admitted the said report tendered by the DILR and in such circumstances, it is necessary to get the same proved by examining the DILR. 13. In view of the facts and circumstances of the case and in order to meet the ends of justice, I deem it appropriate to grant partial relief so far as it relates to issuance of summons for examination of the DILR as a witness on behalf of the plaintiffs. 5 wp5839-11.sxw 14. The plaintiffs also, in the facts and circumstances, shall be required to put to terms in respect of payment of cost. 15. The Plaintiffs shall pay cost of Rs.10,000/- to the defendants or deposit the with the Trial Court within two weeks from today. On deposit of the cost, the defendants shall be entitled to withdraw the same. 16. Rule is accordingly made absolute, to the extent specified in this order. ( R. M. BORDE, J.)