Bombay High Court

KOLHAPUR CENTRAL PRISON KALAMBA THR. ITS SUPERINTENDENT NAGNATH G. SAWANTversusTHE COMMISSIONER KOLHAPUR MUNICIPAL CORPORATION AND ORS.

Disposal: Dismissed
Bench: SACHIN SHIVAJIRAO DESHMUKH

Holding

The re‑appointment of the Court Commissioner is not necessary and the petition seeking it is dismissed.

Summary

The Kolhapur Central Prison filed a suit seeking an injunction against the Kolhapur Municipal Corporation and others over a property on which construction threatened prison security. During the suit, the prison applied for the re‑appointment of a Court Commissioner, alleging that the Commissioner’s report omitted the existence of two terraces on the property, creating a material lacuna. The trial court rejected the application, and the prison challenged that order by filing a writ petition. The High Court held that the role of a Court Commissioner is to assist the trial court, not to gather evidence or fill gaps for a party, and that any inconsistencies in the Commissioner’s report can be addressed during the trial’s final arguments. Consequently, the Court found no prejudice to the petitioner and dismissed the petition, refusing the re‑appointment.

Issues considered

Whether the re‑appointment of a Court Commissioner is warranted to address alleged omissions in the Commissioner’s report.
Whether the trial court erred in rejecting the application for re‑appointment of the Court Commissioner.
Whether inconsistencies in the Commissioner’s findings can be remedied without a new appointment.

Subjects

court commissioner
re‑appointment
injunction
property dispute
prison security
trial court procedure
evidence gathering
writ petition

Judgment

920-WP-1403-2026 (C).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1403 OF 2026
Kolhapur Central Prison Kalamba
Through Its Superintendent Nagnath G. Sawant
VERSUS
The Commissioner Kolhapur Municipal Corporation And Ors.
...
Ms. Suchitradevi S. Ghorpade, Advocate for Petitioner.
...
CORAM : SACHIN S. DESHMUKH, J.
DATE : 2nd APRIL, 2026
P. C. :

1. The Petitioner has raised an exception to the order dated

02.03.2026 rendered by the learned Joint Civil Judge Senior

Division, Kolhapur in R.C.S. No.577 of 2014 below Exhibit – 292

rejecting the application of appointment of Court Commissioner.

2. The Petitioner herein is the original plaintiff while the

respondent herein are the defendants respectively. Hereafter, the

parties shall be referred to as per their original status in the suit.

3. The Plaintiff - Kolhapur Central Prison had filed the said suit

against the defendants seeking injunction in relation to the suit

property. In the interregnum, the plaintiff preferred the application

below Exhibit-292 seeking re-appointment of the Court

commissioner contending that there is diversion in the report
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date:
2026.04.06
20:24:15
+0530
Sajakali Jamadar 1 of 3
920-WP-1403-2026 (C).doc

submitted by the earlier Court Commissioner below Exhibits-243

and 245, respectively. However, the same was rejected by the order

under challenge. Aggrieved by the same the Petitioner is before this

Court.

4. Learned counsel for the petitioner/Plaintiff submits that the

order under challenge is unsustainable in law. The trial Court has

failed to appreciate that there are two terrace in the suit property

i.e. one on the 5th floor and the other above the 5th floor. The Court

Commissioner has failed to disclose this important fact which is

necessary for proper adjudication of the suit. As such, prayed to

allow the Petition.

5. Having heard the submissions and upon perusal of the record

indicates that the Petitioner/Plaintiff is the Kolhapur Central Prison

while the Respondent No.1 is the Kolhapur Municipal Corporation,

who had granted permission for construction on the suit property

and the respondent No.2 has developed the same at the instance of

respondent No.3. That due to the said development, the prison

security is in danger and accordingly the suit came to be instituted

by the plaintiff.

6. Perusal of record further indicates that during the cross

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examination of the Court Commissioner as well as the photographer,

who inspected the site have made certain inconsistent statements

with regard to the structure of the suit property. In order to further

substantiate the said lacuna, it appears that the Petitioner has

sought the reappointment of the Court Commissioner.

7. It is a settled position of law that the appointment of Court

Commissioner is undertaken to assist the trial Court to ensure

proper adjudication of the matter and not to gather evidence or fill

lacuna to support the party contesting the suit.

8. Therefore, the re-appointment of Court Commissioner, in my

considered view is not necessary. So far as the inconsistencies or

contradictions are concerned regarding the Court Commissioner’s

report and eventual evidence, all those aspects can appropriately

dealt with by the trial Court during the final arguments.

9. All these aspects are already appreciated and considered by

the trial Court. Hence, no prejudice is caused to the

Petitioner/Plaintiff and accordingly, I am not persuaded to cause

interference in the well reasoned order under challenge.

10. Resultantly, the Petition stands dismissed.

[SACHIN S. DESHMUKH, J.]

Sajakali Jamadar 3 of 3

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