( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6442 OF 2009 Shri Ravindranath s/o Kashinath Bhosale, R/o “Matruchaya”, Near Civil Court, Karjat, Tq. Karjat, District Ahmednagar PETITIONER VERSUS 1. The State of Maharashtra, through District Collector, Ahmednagar. 2. The Tahsildar, Karjat. 3. The Village Panchayat, Karjat, through its Village Development Officer, Karjat, Dist. Ahmednagar. 4. Smt. Sulochana w/o Pandurang Kale, R/o Near Civil Court, Karjat, Tq. Karjat, Dist. Ahmednagar. 5. Satish s/o Pandurang Kale Since deceased, by L.Rs. 5A. Smt. Surekha Satish Kale 5B. Niranjan s/o Satish Kale 5C. Sow. Pooja w/o Ashok Tekale (Name of this respondent is deleted as per Court’s order dated 09-02-2010) 5D. Ku. Amrata d/o Satish Kale All r/o Near Civil Court, Karjat, Tq. Karjat, Dist. Ahmednagar RESPONDENTS ..... Mr. S.B. Bhapkar, advocate for the petitioner. Mr. N.N. Jadhav, AGP for respondents No. 1 and 2. Mr. S.T. Shelke, advocate for respondent No. 3. Mr. N.C. Garud, advocate for respondents No. 5A, 5B and 5D. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 11th February, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner is original plaintiff of suit (R.C.S. No. 52/2006). He sought mandatory injunction for removal of encroachment. His case before the trial Court was that due to encroachment caused on public road, in front of his residential house property, nuisance is created on account of hindrance to way for egress and ingress. He contended that the defendants No. 4 and 5 have constructed a both-room and latrine septic tank without permission of the village panchayat i.e. the defendant No. 3. He had filed an application in the village panchayat. He alleged that the village panchayat had moved the Taluka Inspector of Land Records (TILR) for measurement of the site in order to locate whether there is encroachment. However, the defendant ( 3 ) No. 3 – village panchayat did not deposit the fee required for the purpose of measurement and as such, the site plan could not be prepared. Since the authorities were not taking effective steps for removal of the encroachment, ultimately, he filed the suit for mandatory injunction. 3. The petitioner filed an application for appointment of Court Commissioner. The application came to be rejected on the ground that it was filed at a belated stage after completing the examination of witnesses. The trial Court held that appointment of the Court Commissioner was sought in order to fill up the lacunae appearing in the evidence tendered by the petitioner. The trial Court accepted the objection raised by the defendants No. 4 and 5 and as such, rendered the impugned order. 4. Heard learned counsel. 5. On behalf of the respondents No. 4 and 5A, 5B and 5D, learned counsel Mr. Garud would submit that the ( 4 ) application for appointment of Court Commissioner was filed at a belated stage in order to overcome the difficulties which were projected due to deficiencies in the evidence tendered by the petitioner. He would further submit that there is no reason to appoint the Court Commissioner. He also invited my attention to certain observations in “Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare and others” 2001 (2) Mh.L.J. 959. A Single Bench of this Court held that the Court Commissioner cannot be appointed for collecting evidence. Mr. Garud would submit that the intention of the petitioner is to gather evidence and as such, the impugned order is justified. 6. At this juncture, it is quite clear that the petitioner filed the suit for mandatory injunction on the ground that there is encroachment caused by the defendants No. 4 and 5 which amounts to actionable nuisance. It is true that the petitioner is not owner of the property on which the alleged construction is raised by the defendants No. 4 and 5. Still, however, ( 5 ) he may file such suit in order to remove the nuisance which causes impediment in the right to have better access to his house property. The question is whether his right to have egress and ingress to the house property is illegally obstructed owing to the alleged unlawful construction raised by the defendants No. 4 and 5. It may be noticed that the defendant No. 3 – Village Panchayat also had asserted that the construction is of the septic tank and bath room was not raised after obtaining due permission. Naturally, there is a prima facie case to infer that the construction is without any legal sanction of the competent authority. 7. The purport of the application filed by the petitioner could not be that of collecting evidence. The collection of evidence is quite a different concept. The visualisation of the fact situation by paying visit to the spot and carrying out of measurement cannot be regarded as process of collecting evidence. The purpose of the spot inspection in such a case is to locate the facts after measurement and to furnish report alongwith panchanama to the Court in order to assist the Court to ( 6 ) reach appropriate conclusion. In other words, this is a process of freezing the fact situation noticed at the spot which can be ultimately revealed in the course of trial before the Court. 8. The appointment of Court Commissioner can be made in different situations. The power to appoint Court Commissioner emanates from section 75 of the Civil Procedure Code. The provisions of Order-XXVI are only explanatory in nature. In an appropriate case, when the Judge himself is satisfied that visit to the spot is necessary, ofcourse in rare cases, the learned Judge also may visit the spot and act like a Commission under Order-XVIII Rule-18 of the Civil Procedure Code. The several provisions are available to meet out contingencies, including the inherent powers under section 151 as well as the provision under Order-XXXIX Rule-7 of the Civil Procedure Code. Rule-7 (1) (a) empowers the Court to make an order for detention, preservation or inspection of any property when the stage is for consideration of interim application for temporary injunction. Needless to say, such safeguards ( 7 ) are provided under the Civil Procedure Code in order to further the cause of justice. 9. In the present case, the petitioner did not ask for recording of any statement. Nor he wanted to seek opinion of the TILR as regards nature of the construction. What he sought under the application was to verify the situation available at the spot, after carrying out measurement and to report the distance between his house and the alleged construction, the area occupied by the construction, the width of the road, etc. It is only after such report is submitted, the Court may be able to reach appropriate findings. Needless to say, the application was of auxiliary kind and as such, should not have been rejected. The impugned order, therefore, suffers from patent error. 10. In the result, the petition is allowed. The impugned order is set aside. The learned Civil Judge (S.D.) to grant the application by passing appropriate order and call for the report of TILR without asking the TILR to express opinion about encroachment and only to ( 8 ) report the fact situation noticed at the spot. The learned Civil Judge may impose conditions like time- frame for submission of the report, non-availability of opportunity to the petitioner to lead any further evidence after examination of the TILR as the Court Commissioner, if required. If the TILR is examined, the defendants will be entitled to cross-examine him. No costs. 11. The observations made in this order be not considered while deciding the matter on merits. [ V.R. KINGAONKAR ] JUDGE NPJ/wp6442-09