(1) WP 67.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.67 OF 2011 Vilas Digambar Desai PETITIONER VERSUS Rajabhau Digambar Desai RESPONDENT ..... Mr. A.P. Bhandari, Advocate for the Petitioner. Mr. S.G. Chapalgaonkar, Advocate with Mr. S.B. Ghute, Advocate for the Respondent. ..... CORAM : B.P. DHARMADHIKARI, J. DATED : 10TH MARCH, 2011 ORAL ORDER:- 1. Heard Advocate Shri Bhandari for the petitioner and Advocate Shri S.G. Chapalgaonkar h/f. Shri Ghute for the respondent. Respondent has filed suit for injunction to protect his possession and there is counter-claim by present petitioner- defendant. After leading his evidence, the respondent-plaintiff filed application under Order 26 Rule 9 of Code of Civil Procedure for appointment of Commissioner to measure the suit property. By impugned order trial Court has allowed it. 2. Shri Bhandari contends that there are two measurement reports already on record and those (2) WP 67.2011 reports or their presence is over-looked. He further contends that though provisions of Section 101 of Law of Evidence are noticed and it is also found that burden is on respondent-plaintiff to prove his title and possession, for collecting evidence the appointment of Commissioner has been ordered. According to him, therefore, this shows total non- application of mind. He placed reliance on the judgment of this Court in the matter of Sanjay S/o Namdeo Khandare Vs. Sahebrao S/o Kachru Khandare and ors. reported at 2001 Vol. I B.C.R. 800 to urge that in such circumstances, appointment of Court Commissioner for the purposes of collecting evidence is without jurisdiction. 3. Shri Chapalgaonkar states that though there are two measurement reports on record both are disputed by petitioner-defendant and he has also challenged the same by filing appeal before competent authority. According to him, in this situation, when the Court itself found the appointment of Court Commissioner proper, this Court should not interfere in the matter. (3) WP 67.2011 4. The suit has been instituted in the year 2008. The petitioner-defendant is pointing out earlier measurement in the year 1989 and in the year 2000. It is not in dispute that he is not satisfied with this measurement. In this situation, the plaintiff has filed application under Order 26 Rule 9 of the Code of Civil Procedure and by placing reliance on judgment of learned Single Judge in the matter of Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade reported at 2004 Vol. 2 Page 722 sought appointment of Commissioner. The trial Court extended opportunity of hearing to both sides and then found it proper to appoint Commissioner. It is to be noted that the parties are claiming injunction against each other and in this situation, the trial Court has found appointment of Commissioner necessary. The earlier two reports of Commissioners are already on record and hence the trial Court can look into entire material at appropriate stage. I do not find that in this situation appointment of Commissioner is for the purposes of collecting evidence or then any prejudice is caused to the petitioner-defendant who has been disputing all (4) WP 67.2011 measurements. I am therefore not inclined to interfere. Petition rejected. 5. In the interest of justice, suit expedited. Same be decided within a period of six (6) months if the respective counsel co-operate with trial Court. Sd/- [B.P. DHARMADHIKARI, J.] arp