wp2475.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2475 OF 2011 KHANDESHWAR MAHADEO MANDIR TRUST THR TRUSTI LAHANU DAGADU GUNJAL AND ORS. ... PETITIONER. VERSUS SHANKAR MADHAV GOSAVI AND ORS. ... RESPONODENTS. ... Advocate for Petitioners : Mr. Shinde S.K. Advocate for Respondents : Mr. Nagargoje A.N. For Respondents No.1 to 5 ... CORAM : S.S. SHINDE,J. 15th November, 2011. PER COURT: 1. This writ petition has been filed challenging the order dated 7th January, 2011 passed by the C.J.J.D., Sangamner below Exh.103 in RCS NO.480/2006. 2. It is the case of the petitioners that the respondents filed RCS No.480 of 2006 for perpetual wp2475.11 2 injunction against the petitioners on 2nd September, 2010. On 21st February, 2007 in response to the summons the petitioners appeared in the matter and prayed for dismissal of the suit. The respondents filed affidavit in Chief on their behalf of one witness namely Jijaba Balkrushna Gunjal. On 2nd September, 2010 the respondents by filing application below Exh.103 under Order 26 Rule 9 of the Code of Civil Procedure, prayed for appointment of Court Commissioner for recording cross examination of the aforesaid witness. On 2nd September, 2010 the petitioners by filing say prayed for rejection of the said application on the ground that it is not maintainable in view of the provisions of Order 26 Rule 9 of CPC. The trial Court on 7th January, 2011 allowed the said application below Exh. 103 for appointment of court commissioner for recording cross-examination of the said witness. Hence, this writ petition. wp2475.11 3 3. The learned Counsel for the petitioners invited my attention to the provisions of Order 16, Rule 19 of CPC and submitted that if the witness is residing within 100 Kms. from the premises of the Court, in that case, no court commissioner can be appointed to record the statement of such witness. It is further submitted that the very purpose of having the witness in witness box is that the court is able to see the demeanor of the witness. He invited my attention to the provisions of Order 26 Rule 1 and 2 and submitted that the order impugned in this petition is without assigning any reasons for allowing the prayer for appointment of court commissioner. The learned Counsel further submitted that the application or prayer for appointment of court commissioner can be entertained if the person whose statement is to be recorded is suffering from sickness or infirmity and unable to attend the Court. However, in the present case, no such evidence is brought on record by the respondents and therefore, in absence of any medical certificate or any proof to show infirmity or that the wp2475.11 4 said witness is unable to attend the court, the trial Court has entertained the application for appointment of court commissioner. The learned Counsel further submitted that the application which was filed for appointment of Court commission was not supported by the affidavit of the applicant. Therefore, according to the learned Counsel for the petitioners, the petition deserves to be allowed. He further placed reliance on the reported judgment of this Court in case of Kishan L. Kripalani vs. Siemens (India) Ltd., reported in 1988(3) Bom.C.R. 131, in particular, paras 7 and 9 of the said judgment, and submitted that the petition may be allowed. 4. On the other hand, the learned Counsel for the respondents invited my attention to the provisions of Rule 4-A of Order 26 of CPC and submitted that the order impugned in this petition is justified under the provisions of Rule 4-A of Order 26. The said rule enables the Court to pass such order for expeditious disposal of the suit. Therefore, the order impugned in wp2475.11 5 this petition is in consonance with the provisions of Rule 4-A, Order 26 of CPC. Therefore, this Court may not interfere in extraordinary jurisdiction in this writ petition. 5. Upon hearing the learned Counsel for the parties, I am of the considered view that in view of the provisions of Rule 4-A, Order 26 of CPC, the order impugned in this petition cannot be faulted with. Rule 4-A, Order 26 CPC reads thus: "4-A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court. -- Notwithstanding anything contained in these rules, any Court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence." 6. Bare perusal of the provision of Rule 4-A would make it abundantly clear that the said provision would prevail over the other relevant provisions including wp2475.11 6 Rules 1 and 2 of Order 26 as also the provisions of Rule 19, Order 16 of CPC. The trial Court, while allowing the prayer for appointment of court commissioner, has stated in the order that for expeditious disposal of the suit such order is required to be passed. The view taken by the trial Court is a possible view and the said view is in consonance with the provisions of Rule4-A of Order 26 CPC. 7. No case is made out for interference. Writ Petition stands dismissed. Interim relief stands vacated. [ S.S. SHINDE ] JUDGE. ... PLK/*