1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7926 OF 2009 WITH Kamlabai Raghunath Patil, age: 62 years, Occ: Agril & Household, R/o Chhail, Tq. Sakri, Dist.Dhule. Petitioner Versus 1 Shantaram Kalu Patil, age: 57 years, Occ: Service; 2 Kapil Shantaram Patil, age: 28 years, Occ: Agril., Both R/o Office of Public Works Department, Pimpalner, Near New English School, Pimpalner, Tq.Sakri, District Dhule. 3 Baburao Kalu Patil, age: 67 years, Occ: Agril., 4 Vijay Baburao Patil, age: 32 years, Occ: Agril., Both R/o Chhail, Tq. Sakri, District Dhule. Respondents WITH WRIT PETITION NO. 7930 OF 2009 Raghunath Kalu Patil, age: 70 years, Occ: Agril, R/o Chhail, Tq. Sakri, Dist.Dhule. Petitioner Versus 1 Shantaram Kalu Patil, age: 57 years, Occ: Service; 2 2 Kapil Shantaram Patil, age: 28 years, Occ: Agril., Both R/o Office of Public Works Department, Pimpalner, Near New English School, Pimpalner, Tq.Sakri, District Dhule. 3 Baburao Kalu Patil, age: 67 years, Occ: Agril., 4 Vijay Baburao Patil, age: 32 years, Occ: Agril., Both R/o Chhail, Tq. Sakri, District Dhule. Respondents Mr.S.P.Brahme, advocate for petitioner. Mr.C.R.Deshpande, advocate for Respondents. CORAM : R. M. BORDE, J. DATE : 26th April, 2010. ORAL JUDGMENT : 1 Heard Shri S.P.Brahme, learned Counsel for petitioner and Shri C.R.Deshpande, learned Counsel for Respondents. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 A strange procedure appear to have been adopted by Civil Judge, Junior Division, Sakri, while conducting inquiry in respect of an application presented by the petitioner - original plaintiff under Order 39 Rule 1 of the Code of Civil Procedure, for grant of injunction. 3 3 It is not necessary go into factual aspects of the matter. Suffice it to note that plaintiffs herein presented suits claiming decree of perpetual injunction against defendants and in pending suits, applications Exhibit-5 came to be filed seeking restraint order against defendants. Applications presented by respective plaintiffs are opposed by contesting defendants by fling Say. Application at Exhibit-32 in Regular Civil Suit No.34/2009 and application at Exhibit-37 in Regular Civil Suit No.33/2009 appear to have been presented by defendants requesting the Court to make appointment of Court Commissioner for local inspection. The trial Court, after considering contentions raised by parties, directed appointment of Court Commissioner. Learned Trial Judge thereafter proceeded to pass the order on 30.10.2009, as is noted below: “1 Application is allowed. 2 Taluka Agriculture and Seed Multiplication Officer, Sakri, is hereby appointed as a Court Commissioner in this matter, who is directed to visit the suit lands situated at village Chhail, namely, Gat No.470 and 425/2-2. 3 He is to inspect the breeds bajara and maize crops in the respective lands with particulars and details regarding the same. 4 The Commissioner is also directed to record the statements of adjacent land owners as witnesses regarding the cultivation of the crops in Gat No.425/2-2. So far as Gat No.470 is concerned, the Commissioner is to inspect the east-west and south-north boundaries and separation of 0.52 R land allegedly in the possession of defendant no.1 and the breeds of the crops cultivated in two portions of the said Gat number. 5 The Commissioner is further directed to make the report of the factual situation of the suit lands along with the map and submit the same in the Court on or before 17.11.2009. 4 6 Defendant No.1 is directed to deposit amount of Rs. 1000/- towards the fees of Court Commissioner and make the necessary compliance. 7 Issue writ after the due compliance.” 4 Learned Counsel appearing for respective petitioners has contended that the order passed by trial Court is in excess of jurisdiction vested in him and is certainly not contemplated in an inquiry for rendering decision on applications presented under Order 39 Rule 1 of the Code of Civil Procedure. It is contended that the inquiry as contemplated by Order 39 Rule 1 of the Code of Civil Procedure is of summary character and direction, as has been issued by the trial Court for collecting evidence for parties, cannot be issued. The trial Court has directed the Commissioner even to record statements of adjacent land owners regarding cultivation of crops in the disputed property. The direction issued in para 4 of the order is clearly an attempt to collect evidence for parties. Such a direction even was not sought for by defendants in the application presented to the Court. 5 Learned Counsel appearing for defendants supported the order passed by trial Court and contended that appointment of Court Commissioner is necessary for deciding the controversy between the parties in its proper perspective. It is further contended that the directions issued to the Commissioner cannot be construed as an attempt to collect evidence for parties. 6 I have perused the application as well as impugned order passed by the trial Court. In an application presented by defendants, there is reference in respect of certain Court questions put to the parties by Presiding Officer of the Court on 30.10.2009. It is noted in the application that in view of the questions put to the parties and answers given by them, it has become necessary to carry out local inspection at the hands of Court Commissioner. It is not clear as to under which provisions court questions were put to the parties by the Presiding Officer at the 5 stage of consideration of application presented for grant of injunction. The examination of witnesses will arise only after framing of issues and when parties proceed to lead evidence for proving their respective cases. The procedure, while dealing with the matter, adopted by Presiding Officer, appears to be quite novel and certainly not contemplated by provisions of Civil Procedure Code. So far as impugned order is concerned, direction contained in para 4 is clearly an attempt for collecting evidence for parties, because it is not even prayed for to direct the Commissioner to record statements of adjacent land owners. However, trial Court has assigned the job of recording statements to the Court Commissioner. What is required to be done, while deciding the application for grant of injunction, is sought to be done through the Commissioner, which is certainly not permissible under the Code. The trial Court is supposed to decide the application by following procedure laid down by the Code of Civil Procedure and more specifically with reference to provisions of Order 39 Rule 1 of the Code of civil Procedure. The case put up by the parties is required to be proved either by tendering affidavits or otherwise. The inquiry, as contemplated by Order 39 Rule 1 of the Code of Civil Procedure, is essentially of a summary character. The impugned order passed by trial Court is clearly an attempt to collect evidence for parties through the Court Commissioner. The appointment of Court Commissioner is not contemplated, considering fact situation of the case, at the stage of determination of application for injunction. The trial Court is supposed to decide the application on the basis of affidavits or the documents, those would be placed by the parties before the Court and strictly adhering to the procedure prescribed under Rule 1 of Order 39 of the Code of Civil Procedure. In this view of the matter, impugned order passed by trial Court on 30.10.2009 below Exhibit-32 in Regular Civil Suit No.34/2009 and Exhibit-37 in Regular Civil Suit No.33/2009 is not sustainable and, therefore, liable to be quashed and set aside. 7 In the result, both the petitions are allowed. The impugned order 6 dated 30.10.2009, passed by Civil Judge, Junior Division, Sakri, below Exhibit-32 in Regular Civil Suit No.34/2009 and Exhibit-37 in Regular Civil Suit No.33/2009, is quashed and set aside. 8 Rule is accordingly made absolute. However, in the facts and circumstances of this case, there shall be no order as to costs. ( R. M. BORDE) JUDGE adb/wp792609