1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6942 OF 2011. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.S.V.Chandole, advocate for the petitioner. CORAM : S.V.GANGAPURWALA,J. Date : 12.09.2011. PER COURT : 1. Heard. 2. The present Respondent No.1 has filed a suit for injunction. The present petitioner who is defendant No.l filed a counter claim and also prayed for injunction. It seems that the dispute is about open space. The present petitioner is claiming that the same is the way. That fact is disputed by the plaintiff. The petitioner filed application for appointment of Court Commissioner to view the length and width of the said open space/way. The said application is rejected. Aggrieved thereby, the present petitioner has filed present Writ Petition. 3. Mr.Chandole, learned counsel for the petitioner submits that 2 the plaintiff is trying to keep wooden logs and stones and is interfering in his way and injunction of the petitioner by closing it. It will facilitate the effective adjudication if the Court Commissioner is appointed who would bring on record the actual area, length and width of the common way. No prejudice would be caused to the plaintiff by appointment of Court Commissioner. On the contrary, it will elucidate the matter in controversy. The learned counsel contends that the trial Court has rejected the application on the ground that the petitioner is trying to collect evidence. The approach is erroneous. The premise on which the application is rejected is also erroneous as the plaintiff has disputed the existence of the way itself. 4. To appoint the Commissioner or not is the discretion of the Court. If the Court feels that the Court Commissioner is necessary to elucidate the controversy in dispute then the Court can appoint Commissioner. In the present case,the parties have not led their evidence. At this stage, the Court has taken into consideration the pleadings of the parties and has arrived at the conclusion that the appointment of a Court Commissioner is not necessary. The said view is a plausible finding of the Court. In any event, the parties have not led their evidence. If after the evidence is led, the parties or the Court feel that appointment of Court Commissioner in one way or the other is necessary and relevant for the effective 3 adjudication of the dispute then in that case, the Court can consider the appointment of Commissioner on its own merits. 5. The Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.12.09.2011. asp/office/wp6942.11 4