AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.701 OF 2008 PETITION NO.701 OF 2008 PETITION NO.701 OF 2008 Shri Tribhuvan Balaram Mokal ...Petitioner Versus. Mukund Narayan Mokal ...Respondent Ms Sheel Devdhar i/by Shri Shrikant V.Gawand for the Petitioner. Shri Milind More with Shri Himanshu B. Takke for the Respondent. CORAM CORAM CORAM : A.A.SAYED, J. : A.A.SAYED, J. : A.A.SAYED, J. DATE DATE DATE : 25th April, 2008. : 25th April, 2008. : 25th April, 2008. P.C.: P.C.: P.C.: 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition has been filed challenging the order dated 01.10.2007 passed by the learned Civil Judge, J.D Pen whereby the application of the petitioner for appointment of Court Commissioner came to be rejected. 3. The petitioner is the plaintiff in the suit wherein an application was made for appointment of Court Commissioner for measurement of the suit property and for direction to prepare a map in respect of encroached area and file a report. 4. The learned trial Judge has rejected this application of the petitioner on the ground that the : 2 : 2 : 2 : father of the petitioner had filed a suit for removal of encroachment against the same defendant and in respect of the same property and that the said suit has been disposed of on merits. The learned trial Judge has observed in the impugned order that the grievance raised in the previous suit filed by the father of the petitioner and the present suit filed by the petitioner is identical and that the petitioner is trying to collect evidence. 5. The learned counsel for the petitioner submitted that the present suit has been filed as there is fresh encroachment in the year 2005. However, from the material on record it transpires that the earlier suit was filed in 2004 and no attempt was made by the petitioner to amend the plaint and incorporate pleadings of fresh encroachment in the said suit which ultimately came to be dismissed in 2007. 6. The learned counsel for the respondent has opposed the petition mainly on the ground that the Court Commissioner cannot be appointed for the purpose of collecting evidence. He has relied upon case of Sanjay Sanjay Sanjay Namdeo Namdeo Namdeo Khandare Vs. Sahebrao Kachru Khandare and others Khandare Vs. Sahebrao Kachru Khandare and others Khandare Vs. Sahebrao Kachru Khandare and others reported in 2001(1) Bombay Cases Reporter Page 800, wherein the single Judge of this Court has held that it is well settled that the Court Commissioner cannot be : 3 : 3 : 3 : appointed for collecting evidence. 7. On perusing the impugned order and the material on record and after hearing the learned counsel for the parties, in my view the findings of the trial Court cannot be faulted. No case is made out for interference in the impugned order in the exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India and I find no illegality or infirmity in the impugned order so as to set it aside. 8. Consequently, Writ Petition is dismissed. Rule is discharged. The petitioner however, is directed to pay Rs.1,000/- to the respondent towards costs of this petition. JUDGE JUDGE JUDGE