1 WP 5953/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5953 OF 2010 ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. S.G. Deshmukh i/b Mr. A.J. Kandarkar for the petitioner. CORAM : D.G. KARNIK, J. DATE : 3RD AUGUST 2010 P.C. : 1. Heard Mr. Deshmukh for the petitioner. 2. This petition is directed against the order dated 2 December 2009 passed by the learned Civil Judge, Junior Division, Gargoti, rejecting the petitioner’s application for appointment of a cadestral surveyor as the Court Commissioner. 3. The petitioner filed a suit for removal of an alleged encroachment. Therein he made an application for appointment of a Court 2 WP 5953/10 Commissioner. Accordingly, the Court appointed Taluka Inspector of Land Records (T.I.L.R.) as the Court Commissioner who carried out the measurement and submitted his report. Thereafter the petitioner filed an application saying that the measurement carried out by the T.I.L.R. was not proper and, therefore, the matter may be referred to the cadestral surveyor. That application was rejected. 4. T.I.L.R. acted as a Court Commissioner and submitted his report. Report of a Court Commissioner is an evidence under Rule 10 of Order 26 of the Code of Civil Procedure (for short “the Code”). No fresh Court Commissioner can be appointed for examining the legality and validity of the report of the first Court Commissioner which by itself is an evidence under Order 26 Rule 10 of the Code. The trial court, therefore, rightly rejected the application for appointment of the cadestral 3 WP 5953/10 surveyor as the fresh Court Commissioner. 5. Realising this difficulty, Mr. Deshmukh prays for leave to withdraw the writ petition with liberty to take out appropriate steps before the trial court. Leave granted. The writ petition is disposed of as withdrawn with liberty as above. 6. It is clarified that no opinion is expressed about the legality or maintainability of any alternate steps which may be taken by the petitioner in the trial court. If any application is filed in the trial court, the trial court shall consider it on its own merits including maintainability of such application. (D.G. KARNIK, J.)