1 wp2014-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 2014 OF 2011 Sattu Damanna Patil(Deceased through Legal Heirs) Yashoda Satu Patil and others .. Petitioners Versus Ranghunath Vishnu Joshi ... Respondent Mr. P. M. Arjunwadkar for the petitioners Mr. R S. Ghadge a/w Mr. A.S. Desai for the respondent CORAM : R. Y. GANOO, J. DATED : 27th September, 2011 P.C. 1. Rule. Rule made returnable forthwith. Learned Advocate Mr. Dhadge a/w Mr. A.S. Desai waives service of the petition. By consent, the petition is taken up for hearing. 2. In a Regular Civil Suit filed by the respondent being Regular Civil Suit No. 29 of 1994 in the Court of Civil Judge, Junior Division, Chandgad, District Kolhapur, a Commissioner was appointed to carry out measurement in respect of the properties in dispute. It appears that firstly, job was was done and thereafter again job was done by the TILR and the said report is at Exh.207. Thereafter, the respondent himself filed another application Exh. 242, thereby contending that the job carried out while submitting report at Exh.207 was not 2 wp2014-11 properly carried out and therefore, the TILR should be directed to visit the site again for the purposes of carrying out the commission work. That application has been granted by an order dated 9th December, 2010 passed by the learned Civil Judge, Junior Division, Chandgad. This order dated 9th December is challenged by this petition. 3. I have heard the learned Advocates of both the sides. The Court is informed that the application for carrying out the commission work was made only after the evidence of both the parties over. In the wake of this development, it would be difficult to accept the stand of the respondent that the Commissioner’s report was necessary for the disposal of the said suit. It is well settled principle that in the normal curse, the parties cannot have the assistance of a commissioner for the purposes of collecting material/evidence. It is equally possible to say that such job can be done at the request of the parties by the Court prior to completion of recording of evidence. The job of sending a commissioner for getting the report after the evidence is recorded is not proper. To that extent, the first order itself by which the commissioner was appointed was not proper. It is noticed that the commissioner did not perform his job properly and this is how a request was made for having the commission done again. That request was granted by the impugned order. 4. Once it is observed that as a matter of general rule, the job of commission cannot be performed after the evidence is recorded to the satisfaction of both the sides. There was no question of granting the application 3 wp2014-11 at the first instance itself, leave apart granting such application on the second occasion. It is in this circumstance, the commissioner’s report at Exh.207 cannot be relied upon by any of the parties. Similarly, the impugned order dated 9th December, 2010 could not have been passed by the learned Civil Judge, Junior Division, Chandgad. 5. For the reasons mentioned aforesaid, I am inclined to set aside the impugned order dated 9th December, 2010 and the petition is disposed of by passing the following order. i. The impugned order dated 9th December, 2010 passed by the learned Civil Judge, Junior Division, Chandgad below Exh.,242 in Reg. Civil Suit No. 29 of 1994 is set aside. Consequently, the learned Civil Judge cannot refer to the Commissioner’s report at Exh.207. ii. The learned Civil Judge, Junior Division, Chandgad is hereby directed to hear and dispose of the aforesaid suit, preferably by 30th November, 2011. iii. There shall be no order as to costs. (R. Y. GANOO, J.)