1 W.P.No.5729/11 with W.P.No.5734/11. UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5729 OF 2011. Poshatti S/o Peeraji Pachiplod, Age 70 years,Occ.Agriculture, R/o Ratnali, Tq.Dharmabad, Dist.Nanded. ... Petitioner. Versus Ramji S/o Hullaji Ugewad, Age 34 years, Occ.Agricuture, R/o Phule Nagar, Dharmabad, Tq.Dharmabad, Dist.Nanded. ... Respondent. ... WITH WRIT PETITION NO.5734 OF 2011. Peeraji S/o Peeraji Pachiplod, Age 55 years, Occ.Agriculture, R/o Ratnali, Tq.Dharmabad, Dist.Nanded. ... Petitioner. Versus Ramji S/o Hullaji Ugewad, Age 34 years, Occ.Agriculture, 2 W.P.No.5729/11 with W.P.No.5734/11. R/o Phule Nagar, Dharmabad, Tq.Dharmabad, Dist.Nanded. ... Respondent. ... Mr.U.B.Bilolikar, advocate for the petitioner. Mr.Vivek Bhavthankar, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 28.09.2011. ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, the petitions are taken up for final hearing. 3. The present Respondent had filed an application for appointment of Court Commissioner purportedly U/o 26 Rule 9 of the C.P.C. for inspection of the suit site. The said application is allowed. The same is assailed in the present Writ Petition. 3 W.P.No.5729/11 with W.P.No.5734/11. 4. The parties have not yet adduced the evidence. The said application is filed at the time of determination of application for temporary injunction. The application for temporary injunction has to be decided on the basis of existing facts and the Court has to arrive at a prima facie conclusion. The Court could not have entertained the said application to collect the evidence. This Court in a case of "Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others" reported in 2001 (2) Mh.L.J. 959, has observed thus : "On going through the said order, it would appear that the Court has appointed the Court Commissioner empowering him to visit and inspect the spot being suit field and to submit report regarding actual possession of the suit field. This would tantamount to appointing Court Commissioner for collecting evidence regarding possession. It is well settled law that the Court 4 W.P.No.5729/11 with W.P.No.5734/11. Commissioner can not be appointed for collecting evidence." In view of that the impugned orders can not be sustained. 5. The impugned orders are quashed and set aside and the Writ Petitions are allowed in terms of prayer clause (B). Needless to state that after the evidence is adduced, the parties are at liberty to file application for the purpose of appointment of Court Commissioner and if the Court feels that the appointment of Commissioner is necessary to assist the Court then the Court may consider the said application on its own merits. 6. Rule made absolute accordingly. No costs. (S.V.GANGAPURWALA,J.) asp/office/wp5729.11 5 W.P.No.5729/11 with W.P.No.5734/11.