1 WP. 3434.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 3434 OF 2010 Baburao Dalpat Patil and others ... PETITIONERS V E R S U S Anusayabai Madhav Koli ... RESPONDENT ... Mr.P.N.Kutti ,Advocate for Petitioners. ... CORAM : V.R.KINGAONKAR, J. DATE : 28TH APRIL, 2010. PER COURT : 1] Heard Learned counsel. 2] The petition is directed against the order dated 27th January, 2010 rendered by the learned Civil Judge Junior Division Muktainagar, on application (Exh.22), in Civil Suit No. 19 of 2008, whereby Court Commissioner was appointed. 3] The contention of the learned Counsel for the petitioners is that, appointment of the Court Commissioner is not necessary and is likely to cause prejudice the petitioners. The dispute relates to user of way to reach respondent’s land bearing Gut No. 41/1. The respondent (plaintiff) sought a declaration and injunction alleging that the suit way was being obstructed by the defendants- 2 WP. 3434.2010 petitioners. 4] Counsel for the petitioners would submit that, the Court Commissioner can not be appointed to collect evidence after visiting to the spot. He refers to the observations of learned single Judge in the case of “Pandurang Nandlal Chandak and another Vs. Sandip Mukundrao Pensalwar and another” reported in 2009(2) Mh. L. J. 487, which is the authority rendered after following ratio of judgment in the matter of “Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others” 2001(2)Mh. L. J. 959. The learned Single Judge held that:- “Only when the trial Court finds a local investigation necessary for the purpose of deciding the matter in dispute, it may exercise the discretion for appointment of Court commissioner. There can not be two opinion, which Court commissioner can not be appointed for the purpose of collecting of evidence. The expressions “Collecting of evidence” and “verification of the facts situation on the spot” are altogether different. “ In the present case, the Commissioner is not going to record the statements of witnesses or assert any fact from other sources. His primary obligation is to visit the agricultural land in question and to locate whether there exists suit way or that it does not exist on the spot. The reply given by the petitioner to the application itself shows that, if alternate way which they would point out, could be 3 WP. 3434.2010 inspected, then it would be a proper request made by the respondent. In fact, the trial Court should have directed the Court Commissioner to inspect not only the disputed way, but also any other way available to reach the land in question. The appointment of Court Commissioner is not only subject matter of Order 26 Rule 9 of the Code of Civil Procedure. In fact, the basic power available to the Court is envisaged in section 75 of the Code of Civil Procedure and order 26 is only explanatory in nature. So also, such power is available to the Court under section 94 as well as under section 151 of the Code of Civil Procedure. Only precaution to be taken by the Court in directing appointment of Court Commissioner, is that the work of the Court Commissioner should not be that of the Court itself. The work of a Court Commissioner is to verify the fact situation on the spot instead of a Judicial officer going to the spot, which is also permissible under Order 18 Rule 18 of the C.P.Code. In other words, when the Court is unable to visualize the fact situation, then the Court through the eyes of the Court Commissioner, record the facts as drawn by the Court Commissioner. 5] Under these circumstances, the appointment of Court Commissioner, prima facie, can not be faulted with and the discretion utilized by the Civil Court can not be said to be perverse. Still, however, in addition to verification of the suit way and existence thereof, the Court Commissioner shall also examine whether there are alternate ways, as suggested by the petitioners and shall give comprehensive report of the facts which are noticed at the spot. 4 WP. 3434.2010 6] With these observations, the petition is dismissed. Sd/- (V.R.KINGAONKAR ) JUDGE MTK