1 wp149.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 149 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. N.D. Sonavane, Advocate for the petitioners. Mr. Irale Patil, Advocate for respondents. 1. Heard Advocate Mr. Sonavane for petitioner- plaintiff and Advocate Mr. Irale Patil for respondents. 2. The Court below has allowed the application filed by respondent-defendant and appointed Commissioner to find out the situation of the land including the position of pipeline of drip irrigation. Learned Counsel for the petitioner-plaintiff contends that this is nothing but collection of evidence. 3. Advocate Mr. Irale Patil for respondents has contended that it is not collection of evidence but it is for ascertaining facts and those facts will help the trial Court in deciding the matter correctly. He has relied upon the judgment of Hon'ble Supreme Court reported in "2006(6) 2 wp149.11 Mh.L.J. 545" ( Subhaga and others V/s Shobha and others), the judgment of Single Judge of this Court reported in "1994(1)Mh.L.J. 664" ( Tajmulhussain Mulla Mumtaz Hussain v/s Satish Bhanudas Chavan) and other judgment of this Court reported in " 2010(2) All M.R. 696" ( Yeshwant Bhaduji Ghuse V/s Vithobaji Laxman Ladekar). However, he is not in position to state at what stage the Commissioner was appointed in all these reported judgments. 4. The prayer for relief of temporary injunction is pending. Same can be decided on the basis of affidavits and other material on record and ascertainment of facts through Commissioner is not necessary at this stage. 5. With liberty to petitioner-plaintiff to renew his request at appropriate stage, the impugned order passed below Exhibit-30 in R.C.S. No. 145/2010 on 16.12.2010 is quashed and set aside. 6. Writ Petition is accordingly allowed. No costs. (B.P. DHARMADHIKARI) JUDGE. 13.01.2011 gas/wp149.11