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commissioner report during pendency of o7/r11 app

Social Worker

Commissioner for Factual Report during pendency of  O7/R11 Application

The plaintiff files a frivolous a civil suit, praying that the defendant be prohibited/restrained from dispossessing the plaintiff from a property in his possession! The fact is that the property is not in the possession of the plaintiff but the defendant and legitimately so since 1992 when he had purchased the property duly. The defendant files an application under Order 7 Rule 11 for dismissal of suit for want of “cause of action” against the defendant. The plaintiff is not replying or arguing on this Application. Can the defendant pray to the Court to appoint a commission to give a factual report and then decide the Application under Order 7 Rule11 on the basis of the report of the commissioner? Because if the commissioner submits the report that the plaintiff is not in possession of the property then his suit will be dismissed forthwith!!

Any suggestions by Learned members!!

 
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The court at this stage will not entertain a fresh application for appointment of  commissioner as long as the application under 7/11 is not decided upon . The basis of the application is that the Plaintiff has not articulated on the " Cause of Action " which led him to file a suit. You can plead before the Court to speed up disposal of the application by giving a Last chance to file a reply to the Plaintiff .  

You should not be bothered about this case if the Case has not given an interim Stay in favour of the Plaintiff  but against you to maintain Status Quo i.e let the plaintiff continue with the possession of the disputed property . 

I suspect that the Plaintiff my file a criminal case of forced eviction against the defendant that the defendent has dislodged the Plaintiff and taken possession of the property by force on an imaginary date 

Else,  the Plaintiff may be working  on a strategy to take possession of the property by force and then request Court for a Commissioner Report saying that he has possession of the property and the defendant is trying to dislodge him

 
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Social Worker

Dear Pratulji

Thank U very much

Actually a fact which was missed by me in presentation was that the defendant is in possession of the property is proved by the fact that just 15 days before  the suit was filed by the plaintiff and almost 8 months after the date on which the plaintiff claims he purchased the property, the defendant made an FIR against some persons (not this plaintiff) who were trying to dispossess the defendant from this property

The Police arrested a few persons and also presented a Charge Sheet against them (not the plaintiff) for destruction of property. The suit was filed by the plaintiff after all these incidents. There is a record in terms of Police Reports and witnesses on the basis of which the CS was filed , which shows the possession of the defendant till just 10 days before he filed the suit!

Does it help?? In these circumstances the Plaintiff  filing a criminal case of forced eviction against the defendant that the defendant has dislodged the Plaintiff and taken possession of the property by force on an imaginary date  u is ruled out but your second anticipation seems to be a valid point

Even I anticipate what u have feared! 

The Plaintiff may be working  on a strategy to take possession of the property by force and then request Court for a Commissioner Report saying that he has possession of the property and the defendant is trying to dislodge him

 

This is because the Defendnt stays in other city whereas the Plaintiff stays just adjacent to tthe property so it becomes easy for him

 

So what should be the right strategy?

 

Should the defendant file a complaint with the Police that the Plaintiff may plan to dispossess the defendant by hook or crook! Then when the Police makes an inquiry it may put an FR on defendant's complaint but in the course of inquiry, at least there will be a record that as on date the defendant is  in possession of the property

 
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1)  The Police Charge Sheet cannot be used as Conclusive Evidence as Police may be biased . Court cannot rely on the Charge Sheet unless the Criminal Trial is concluded and accused are convicted .

But here also the Criminal Court may assume a Neutral stand and may not declare as to who was in possession of the property.

It is not mandatory for a Civil Court to rely on conclusions of a Criminal Court . 

2) Your possession can only be proved by Government Receipts, Driving Licence, Water / Electricity Bills / Registered Letters received at the disputed property, Put a tenant at the property, ( He will also be a witness of your possession) / Voter ID card,  Nationalised Bank Letters / BSNL Telephone Bills / Aadhar Card at your address . Beware, your opponent  may also be working on similar lines .
 
3) You can put a formal complaint at the Police Station Concerned  and ask Police to get them bound for not doing any unlawful activity under 107/116(3)  CrPC. This would help .
 
4) Send letters to SP / SHO by registered post and get certified copies  under RTI Act 2005 .
 
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