1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6185 OF 2009 Rashtriya Shikshan Prasarak Mandal Ltd. Chalisgaon, a society registered under Maharashtra Cooperative Societies Act, bearing R.NP. C-158, Having its registered office at Chalisgaon, Dist-Jalgaon, Through its Chairman. ...PETITIONER. VERSUS Smt. Premkumari w/o Bhikamchand Jain, R/o-7, Shivaji Nagar, Jalgaon, District-Jalgaon, Through her special power of attorney Rajendra s/o Bhavrilal Jain, R/o-Station Road, Chalisgaon, Dist-Jalgaon. ...RESPONDENT. ... Mr.P.R. Patil Advocate for Petitioner. Mr.P.M. Shah, Senior Counsel i/b. Mr. S.P. Shah Advocate for Respondent sole. ... CORAM: K.K. TATED, J. ORDER RESERVED ON : 5TH OCTOBER, 2009. ORDER PRONOUNCED ON: 16TH OCTOBER, 2009. 2 COURT'S ORDER : 1. With the consent of the learned counsel for the parties, matter is taken up for final hearing. Rule. Rule made returnable forthwith and matter is heard finally at the stage of admission. 2. Heard learned counsel for the Petitioner and learned senior counsel for Respondent. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioner - original defendant challenges the order below Exhibit 7 in Regular Civil Suit No.160 of 2008 passed by 2nd Joint Civil Judge, Junior Division, Chalisgaon dated 15th July, 2009, thereby the application below Exhibit 7 filed by the Respondent - original plaintiff for appointment of Court commissioner allowed. A few facts of the present case are as under: . In the present case the Respondent - original plaintiff filed a suit for possession and injunction 3 against the Petitioner under Section 16 (1) (a) 16 (1)(b), 16 (1)(g) of the Maharashtra Rent Control Act read with Section 108 (O) of the Transfer of Property Act, on 3rd November, 2008. Immediately on the same day the Respondent - original plaintiff filed application for appointment of the Court commissioner under Order 26 Rule 9 of the Code of Civil Procedure. 3. It is the case of the Respondent that during last 4-5 years the Petitioner - original defendant unauthorizedly and illegally without written or oral permission of the Respondent - original plaintiff, constructed the following permanent structure in the premises: i) near the old structure P - Annexure A - the defendant has constructed one room with bricks and cement having as a roof tin sheets with door, --Photograph Annexure D, ii) near the well two additional 4 rooms built in bricks and cement and covered with tin sheets are constructed. -- Photograph Annexure D, iii) one more room constructed in cement and bricks near old building R with door, lock and key -- Photograph Annexure E, iv) near about six rooms are constructed in the open space near the old structure -- Photograph -- Annexure E, v) At present construction of 6 rooms in a row in the portion shown in Annexure A by figures 33 and 32 is in fact progress and walls of all the sides are completed with stairs and the ceiling is made of tin sheets with angles fixed therein and yet doors have remained to be fixed to these 6 rooms and the plaintiff is producing in all 6 photographs showing the position of these room --- Photographs Annexure F. vi) The defendant also has cut down 5 number of old Neem trees ages about 50 to 60 years standing in the suit premises without the written or oral consent of the plaintiff or Tahasildar and/or Municipal Council, Chalisgaon and huge cut stems of the trees are lying in the suit premises -- Photographs Annexure G." 4. The said application below Exhibit 7 for appointment of Court Commissioner allowed by the trial Court by order dated 15th July, 2009. The operative part of the said order reads as under: "1. The application is allowed. 2. The matter be posted for receiving suggestions and consent for appointment of particular person as a Court Commissioner. 3. Detailed order as to work to be done by the commissioner, will be passed after, deciding the appointment of particular person as a Court Commissioner." 6 5. Learned counsel for the Petitioner - original defendant submits that the Respondent filed application below Exhibit 7 on the same day when she filed Regular Civil Suit No.160 of 2008 for injunction and possession of the suit property. He further submitted that Court Commissioner cannot be appointed immediately on filing of the Plaint. He further submits that the Court Commissioner should not be appointed for collection of evidence and the Respondent is doing the same thing by filing application below Exhibit 7. Learned counsel for the Petitioner submitted that the main object of the Respondent in filing application below Exhibit 7 is to collect the evidence on record against the Petitioner and the same cannot be permitted as per law. In support of his contention, learned counsel for the Petitioner relied on the following Authorities: 1) Nitindra Nath Roy Chowdhury and others vs. Subhash Ch. Kar., reported in A.I.R. 1981 Calcutta, 7 Page 319, 2) Allahabad Bank vs. Sourendra Nath Shaw and another, reported in A.I.R. 1997 Calcutta, Page 80, 3) Sanjay son of Namdeo Khandare vs. Sahebrao s/o Kachru, reported in 2001 B.C.R. I, Page 800, 4) The Institution of Engineers (India) and another vs. Bishnu Pada Bag and another, reported in A.I.R. 1978 Calcutta, Page 296, 5) Sri Prasanta Kumar Jeha vs. Choudhury Purna Ch. Das Adhikari, reported in 99 (2005) C.L.T. Page 720, 6) The Owners and Parties Interested in the Vessel M. V. "Baltic Confidence" vs. The State Trading Corporation of India Ltd. and another, reported in A.I.R. 2000 Calcutta, Page 91, 7) Miss Renuka vs. Tammanna, 8 reported in 2007 A.I.R. Karnataka, Page 485, 8) Ankura and Ankura Charan Sahu and another vs. Arjuna Charan Palei and others, reported in 1998 A.I.H.C. Page 1702. 6. All these authorities cited by the learned counsel for the Petitioner in support of his submission that the Court Commissioner cannot be appointed for collecting the evidence. In the Authority in the matter of Nitindra Nath Roy Chowdhury (supra) the Calcutta High Court held that Court can issue commission for inspection at any stage of the suit. 7. With the assistance of the learned counsel for the Petitioner I have gone through all these Authorities cited by him. It is correct that the Commissioner cannot be appointed for collecting the evidence in the matter. It is the duty of the parties to prove their case on their own documents 9 and by adducing oral evidence. In the present case in hand, the trial Court by its order dated 15th July, 2009, allowed the Respondent's application below Exhibit 7. It is specifically stated in the impugned order that detailed order as to work to be done by the Commissioner will be passed after deciding the appointment of particular person as a Court Commissioner. Therefore, as on today the trial Court has not decided exactly which work to be carried out by the Commissioner in the present case. Therefore, it is not necessary to consider the Authorities cited by the learned counsel for the Petitioner at present for coming to the conclusion that the Court should not appoint Court Commissioner for collecting the evidence in the matter. This stage will come when the trial Court would decide the exact work to be carried out/ done by the Commissioner. Therefore, the submission made by the learned counsel for the Petitioner that by impugned order dated 15th July, 2009 indirectly the Court is allowing the Respondent- original plaintiff to bring the evidence on record through the Court 10 Commissioner, is not acceptable at this stage. As on today the trial Court has not decided the exact work to be done by the Commissioner as per order dated 15th July, 2009. 8. The other submission made by the learned counsel for the Petitioner is that the Respondent - original plaintiff filed application for appointment of Court Commissioner on the same day when she filed the suit for injunction and eviction. It is to be noted that power of the Court in appointment of Commissioner for the purpose of local investigation should be exercised before the commencement of evidence or the settlement of the issues. In the present case, Respondent specifically pleaded in her Plaint that the Petitioner - original defendant carried out several unauthorized constructions without her permission. In support of her submission the Respondent also relied on the Photographs of the alleged construction and other documents. For ascertaining the fact stated by the Respondent in her Plaint, the Respondent made application for 11 appointment of Court Commissioner on the same day when she filed the Suit. The object of local investigation is not so much to collect the evidence which can be taken in Court but to obtain evidence which from its peculiar nature, can only be had on the spot. In the present case the contention of the Respondent about unauthorized construction carried out by the Petitioner can be brought on record only by appointing the Com missioner. Considering the peculiar facts and circumstances of the present case I do not find any substance in the contention of the learned counsel for the Petitioner that the application for appointment of Court Commissioner cannot be filed immediately after filing of the Suit. In the present case the facts which are stated by the Respondent in her Suit, to verify the same the Respondent filed application for appointment of Court Commissioner. Therefore the second submission made by the learned counsel for the Petitioner about the stage of filing of the application for appointment of Court Commissioner is rejected. 12 9. In any case, it is made clear that the Petitioner can challenge the subsequent order, if any, passed by the trial Court deciding the work to be done by the Court Commissioner, if in view of the Petitioner the same amounts to collection of evidence on record. Considering these facts, I do not find any substance in the present Petition to interfere at this stage, with the impugned order passed by the 2nd Joint Civil Judge, Junior Division, Chalisgaon dated 15th July, 2009 below Exhibit 7 in Regular Civil Suit No.160 of 2008. Writ Petition is therefore dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/OCT09/wp6185.09