1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5702 OF 2009 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.S.S.Deshmukh, advocate for the petitioners. Mr.D.B.Rode, advocate for Respondent Nos.1 to 3. CORAM : S.V.GANGAPURWALA,J. Date : 25.08.2011. 1. Heard. 2. The present petitioners have filed a suit for injunction. After the determination of application for temporary injunction, the present Respondents preferred Misc. Civil Appeal. During the pendency of the said Misc.Civil Appeal, the present Respondents filed an application for appointment of Court Commissioner before the District Court. The said application was rejected mainly on the 2 ground that the same is not permissible U/o XLI Rule 27 of the C.P.C. 3. Thereafter during the pendency of the suit, the Respondents filed an application for appointment of Court Commissioner. The same was rejected on merit by the trial Court on the ground that the same is not necessary in a suit for injunction. Thereafter the third application was filed for the same purpose. The said application is allowed by the trial Court. The plaintiffs have assailed the said order in the present Writ Petition. 4. With the assistance of the learned counsels, I have gone through the impugned order. Mr.Deshmukh, learned counsel submits that even in view of the principle of res-judicata, the third application could not have been entertained, more particularly, as a second application for the same purpose was rejected by the trial Court on merits. 5. The legal position is well settled. The principle of res-judicata apply for two stages in the same proceedings. The same need not be 3 dilated. Moreover, perusing the order it shows that the said order has been passed without application of mind. The learned Judge has observed that he is allowing the application for appointment of Court Commissioner without going into the merits of the application. The said order seems to have been passed in a casual manner. The Court while passing the order has to consider the merits of the application and then only decide the same. The perusal of order shows total non-application of mind on the part of the trial Judge. 6. In view of the above, the impugned order is quashed and set aside. The Respondents have deposited an amount of Rs.5,000/- (Rupees five thousand). The Respondents are allowed to withdraw the same. 7. Rule made absolute in terms of prayer clause (B). (S.V.GANGAPURWALA,J.) Dt.25.08.2011. asp/office/wp5702.09 4