1 WP 5913.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5913 OF 2011 Jalindar S/o Shamrao Talekar .... PETITIONER V E R S U S Vitthal S/o Baburao Bhagat and others .... RESPONDENTS Mr. S.A.Dhengle, Advocate for the Petitioner. Mr. H.V.Tungar, Advocate for Resp. No. 1 to 3 CORAM : S.V. GANGAPURWALA, J. DATE : 06/09/2011 ORAL ORDER : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. The petitioner is the original plaintiff, who had filed Suit for simplicitor injunction restraining the defendants from interfering in his possession. The defendants resisted the said Suit. During the pendency of the Suit, the defendants moved an application for appointment of Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. The trial Court has allowed the said application. Aggrieved thereby, the petitioner has 2 WP 5913.2011 filed the present Writ Petition. 3. Heard the learned counsel for the respective parties. 4. Mr. Dhengle, the learned counsel submits that the Court Commissioner can not be appointed for the inspection of the property. That would amount to collecting the evidence. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Sanjay S/o Namdeo Khandare V/s Sahebrao S/o Kachru Khandare and others reported in 2001 ( 1 ) Bom. C.R. - 800. According to the learned counsel, the petitioner wants the Commissioner to be appointed to inspect the property and to submit report about the standing crops and the manner of distribution of the well water. The same can not be permitted. 5. Mr. Tungar, the learned counsel for respondent nos. 1 to 3 submits that the application is filed not for showing the possession of a particular party, but to bring on record the factual aspect about the manner of the pipe line and the distribution of the water through the said pipe line. The same is not bringing on record the possession of either party. The said application is in consonance with the written statement filed by the respondents. According to the learned counsel, the same shall be permissible under Order XXVI Rule 9 of 3 WP 5913.2011 the Code. The learned counsel relies on the Judgment of the learned Single Judge of the Andhra Pradesh High Court in the case of Salla Eswaramma V/s C.Subba Reddy reported in 2009 (2 ) ALT 59. 6. With the assistance of the learned counsel, I have gone through the pleadings and the impugned order. 7. The Suit is for simplicitor injunction. Both the parties claim to be in possession of the respective property. The issue before the Court would be simply to decide about the possession of either party. The defendants have contended about the erection of pipe line and the distribution of well water, which is disputed by the plaintiff. The said fact can be proved by leading evidence by either party. For the said purpose, Section 75 read with Order XXVI Rule 9 of the Code is not required to be resorted to. The parties are yet to adduce evidence. Order XXVI Rule 9 of the Code is meant only to facilitate the Court in adjudication of the matter. If the Court feels that the appointment of Commissioner is necessary for elucidating the matter in dispute, then in such circumstances, the Commissioner can be appointed. The facts in dispute can be proved by the parties by adducing oral as well as documentary evidence. More over, the parties have not yet led their evidence. In such circumstances, the impugned order can not be sustained. After the evidence is led by 4 WP 5913.2011 the parties and thereafter if the Court feels that the assistance of the Commissioner is necessary, at that time, either of the party can move the Court for that purpose. 8. In view of the above, the impugned order is quashed and set aside. 9. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 5913.2011 - [ J ]