FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WP/1025/2010 DIGAMBAR V/S CHAND 1. Heard Shri Dharashive, learned Advocate for the petitioner. 2. Petitioner is plaintiff in RCS No.244 of 2009. Copy of the plaint is not on record but the learned Advocate states that it is for perpetual injunction. 3. Two applications - Exhibits 5 and 17 - filed by the petitioner in the said suit for temporary injunction under Order XXXIX Rules 1 and 2 of CPC were heard by the trial Judge and by an order dt. 5.9.2009 they were rejected. Misc. Civil Appeal No.64 of 2009 against the said order was filed in the Court of the learned Additional District Judge, Latur. During pendency of this appeal, the petitioner filed an application seeking appointment of the Court Commissioner for local inspection under Order XXVI Rule 9 of CPC on 30.11.2009 (Exhibit "B"). The Court rejected the said application on the grounds that the petitioner is trying to collect evidence with the aid of court machinery and that he lost the cause in the temporary injunction applications at the hands of the trial court. The issue pertains to alleged non cultivable land i.e. the suit property. Allegation of the petitioner is that on account of obstruction of respondent, he could not cultivate and to bring on record such status of the suit property i.e. "non cultivated", appointment of the Court Commissioner, FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS according to the petitioner, is necessary. The first appellate Court also rejected said contention of the petitioner. Said order is questioned in this petition. 4. I have given due consideration to the submissions of the learned counsel or the petitioner. He also relied upon the judgment of the learned Single Bench of this Court in the case of Kisanal Vs. Dinkar [2004 (1) Mah.L.J. 138]. The facts of the said case and that of the case on hand are altogether different. Petitioner cannot have advantage of the said decision. In my view, the order impugned is legal and proper. 5. Petition sans merits. Therefore, dismissed in limine. No order as to costs. Dt.10.2.2010 (S.B.DESHMUKH, J.) akl