1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 298 OF 2010 (Bansilal Kisan Dhamat vs. Ashok Pandurang Raundale) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 10, 2010. Heard finally Shri Mohta, learned counsel for the petitioner and Shri Mirza, learned counsel for respondent No. 1. Shri Mirza, learned counsel points out that the Commissioner had already visited the site and carried out measurements. He invites attention to certain photographs to show that there is a projection of construction on public road by the petitioner – defendant. The suit by the respondent – plaintiff is for mandatory injunction to restrain the petitioner – defendant from committing any aerial encroachment. Thus, whether there is any aerial encroachment and whether it is on public road or not, are the disputed questions of facts. When the application at Exh. 5 is pending, the respondent – plaintiff filed the application for appointment of Commissioner to verify these facts. It is apparent that these facts can be brought on record through various other means and the Commissioner 2 cannot be asked to verify those facts by visiting the spot. This is nothing but collection of evidence through the Commissioner. However, as in the present matter, the Commissioner has already carried out measurements, the trial Court shall proceed further with the hearing of Exh. 5 on the strength of material available on record and decide it on its own merit. If the trial Court finds any difficulty in adjudicating Exh. 5, it is free to consider the report of Commissioner only in that event. However, before relying upon such report of the Commissioner, the trial Court should give an opportunity to the parties to advance their respective contentions about such report. With this clarification, writ petition is disposed of. However, there shall be no order as to costs. JUDGE *GS.