1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 415 OF 2010 SANTU BANDU SONWANE AND OTHERS ..PETITIONERS VERSUS ANIL KISAN DONGARE AND OTHERS ..RESPONDENTS ... Advocates appearing for : Petitioners : Shri C.K.Shinde Respondents : Shri K.S.Bhore h/f Shri P.B.Shirsath ... CORAM : S.B.DESHMUKH,J. Dated : 2.2.2010 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith. 3. Present petition is filed by original defendants in RCS No.262 of 2009 pending in the Court of learned Civil Judge S.D. Kopargoan, District Ahmednagar. Copy of the plaint is at Exhibit “A”. I have gone through the same. Learned counsel for the petitioners invites my attention to prayers. The suit is for declaration and perpetual injunction pertaining to a cart way as described in paragraph No.1 of the plaint. The suit was accompanied by an application for temporary injunction. After service, defendants appeared in the suit. 4. Learned counsel for the petitioners points out application 2 Exhibit 8 filed by plaintiffs for appointment of the Court Commissioner for local investigation, under Order XXVI Rule 9 of CPC. Copy of the said application is on record. Learned counsel for the petitioners took me through the order of the trial court, more specifically paragraph No.8. According to him, it is not a case wherein the Commissioner can be appointed under Order XXVI Rule 9 of CPC. He points out two observations from paragraph No.8 of the trial Court, which reads as; “ ....From the photographs filed on record by the plaintiffs there appears a cart way, but the plaintiffs are submitting that the defendnts have obstructed the way and dug the way to some extent....” and “...Though evidence as to the existence of way can be given in the Court, the evidence as to the location of the way and its digging or changing nature of the way by the defendants can not be given in Court without local investigation....” . According to the learned counsel for the petitioners, these observations are per se illegal and impugned order needs to be quashed and set aside. 5. Learned counsel for the plaintiffs supports the order passed by the trial Court. According to him, commission work has been executed and report is placed on record at Exhibit 45 in the trial Court. Copy thereof is presented in the Court. It is taken on record and marked Exhibit “X”. It was made available to the learned counsel for the petitioners for inspection. According to Shri Bhore, learned Advocate for respondents, since the commission has been executed, the petition has become infructuous. 6. It is not possible to accede to the submission of Shri Bhore, 3 learned Advocate for the respondents. Report of the Commissioner can not be read in evidence the moment it is filed in the Court. Order XXVI Rule 10 of CPC prescribes the procedure pertaining to the report submitted by the Commissioner. That stage is yet to come for the simple reason that the suit is filed on 19.12.2009 and as of today, suit is posted for filing of the written statement. So far appointment of Commissioner is concerned, the issue is governed by Order XXVI Rule 9 of CPC. The trial Court in its order has observed that the photographs can be taken out and placed on record so also can be proved in accordance with the rules of evidence by the party concerned. The trial Court has further observed that act of digging or destroying the road by the defendants cannot be the matter of photographs. Observation of the trial Court, cannot be accepted. The appointment of Commissioner is always for elucidating the point or issue involved. Considering the facts and circumstances on record, it cannot be said that the appointment of the Court Commissioner is justifiable, in view of Order XXVI Rule 9 of CPC. In my view, in the facts and circumstances of the case, the order is perverse and requires to be quashed and set aside by invoking the extra ordinary jurisdiction of this Court. 7. In the result, the petition is allowed. Impugned order is quashed and set aside. Rule made absolute in above terms. No order as to costs. ( S.B.DESHMUKH, J.) ... akl