1 wp 6260.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6260 OF 2011 Sham Rikhabchand Chordiya, Age : 50 Years, Occu. : Business, R/o Ujwalnagar, Aurangabad. .. Petitioner Versus 1. Shankarrao Rangayya Chindam, Age : 65 Years, Occu. : Business, 2. Shrikant Shankarrao Chindam, Age : 45 Years, Occu. : Business, 3. Shripad Shankarrao Chindam, Age : 40 Years, Occu. : Business, All Above R/o Mohanbag, Delhi Gate, Ahmednagar. .. Respondents Shri N. V. Gaware, Advocate for the Petitioner. Shri S. P. Shah, Advocate h/f Shri M. B. W. Khan, Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH SEPTEMBER, 2011. ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of 2 wp 6260.11 parties taken up for final hearing. 2. The petitioner is the original plaintiff who has filed suit for injunction. During the pendency of suit the petitioner moved an application Exhibit 12 for appointment of commissioner for the purposes detailed in the said application. The Trial Court allowed the said application and appointed the Town Planning Officer, Ahmednagar Municipal Corporation as Court Commissioner vide order dated 29 th April, 2011. Thereafter, the petitioner moved an application Exhibit 50 for change of Court Commissioner i. e. instead of Town Planning Officer from Ahmednagar Municipal Corporation, a officer from City Survey Office, Ahmednagar was sought. The Court allowed the said application. Thereafter, Court Commissioner carried out spot inspection and submitted the report. The petitioner thereafter filed an application Exhibit 75 for appointment of Court Commissioner in view of the fact that the Commissioner had not measured, nor inspected nor submitted the report as per the directions issued vide Exhibit 12 and 50. The Court rejected the said application. Aggrieved thereby the present petition is filed. 3. Shri Gaware, the learned counsel for the petitioner submits that the order passed below Exhibit 12 was also challenged by 3 wp 6260.11 the respondents by filing review petition, which came to be rejected. As such, the order below Exhibit 12 was confirmed. Exhibit 50 was merely for change of the Court Commissioner. So the Court Commissioner who was appointed will have to submit his report pursuant to directions issued on Exhibit 12 and 50. Perusal of the report it would show that the said report is not in consonance with the directions issued by the Court vide order below Exhibit 12 and 50. 4. Shri Shah, the learned counsel for respondents submits that the inspection has been carried out as per the order passed below Exhibit 50. As such, the Commissioner has carried out the inspection as per the directions and writ issued to him. The Commissioner cannot travel beyond the directions issued in the writ. The petitioner had not objected at the relevant time, when the order below Exhibit 50 was passed. As such the petitioner is bound by the same. The learned counsel further contends that the conduct of the petitioner does not deserve any indulgence at the hands of this Court, as the petitioner was interested in getting an ad-interim order and the proceedings have been protracted by the petitioner deliberately. 5. The order below Exhibit 12 was not assailed by any party. 4 wp 6260.11 Exhibit 50 was merely for the change of Court Commissioner. As such, the directions issued below Exhibit 12 stands. The Court had passed the order below Exhibit 12 taking into account the nature of the dispute between the parties. In the light of that it cannot be said that the directions issued below Exhibit 12 stands merged in Exhibit 50. In fact the writ ought to have been issued to the Commissioner pursuant to the directions issued as per order below Exhibit 12 and 50. 6. In the light of above the order impugned is quashed and set aside. The Town Planning Officer, City Survey Department, Ahmednagar is appointed as Court Commissioner and he shall submit the report as per the directions issued vide order Exhibit 12 and 50. The Trial Court shall issue writ to the Commissioner directing him to submit the report as per the directions contained in the order passed below Exhibit 12 and 50. The petitioner shall bear the charges of the Court Commissioner. The Court Commissioner shall carry out its work as per the writ issued to him expeditiously after giving notice of commission to the parties. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11