1 D.B.Civil Special Appeal No.1181/2008 Ramavtar V/s Krishan Kumar and ors. 16.7.2008 Hon'ble the Chief Justice Mr.Narayan Roy Hon'ble Mr.Justice Mohammad Rafiq Mr.M.M.Ranjan for the appellant. Heard learned counsel for the appellant. This appeal is directed against order dated 10.4.2008 passed by learned Single Jude of this Court in exercise of power under Article 226 of the Constitution of India whereby and whereunder the writ application was allowed setting aside the order passed by trial court rejecting prayer of the plaintiff for appointment of Commissioner to take evidence of three of his witnesses. It appears that the suit for specific performance was filed by plaintiff before the trial court. In the suit, an application was filed for appointment of Commissioner to examine his three witnesses, namely, Shashidhar, Notary Public, C.M.Arora and Rashmi Mandelia, who reside in Mumbai. Learned trial court on hearing parties however rejected the application of the plaintiff. The matter ultimately was challenged before this Court in writ jurisdiction by the plaintiff. The learned Single Judge of this Court after considering the facts and circumstances of the case allowed the writ application by setting aside order rejecting prayer of the plaintiff for appointment of Commissioner and directed the trial court to appoint a Commissioner for examination of three 2 witnesses in Mumbai. Learned counsel appearing on behalf of the appellant submitted that the learned Single Judge of this Court without assigning any reason as to necessity to appoint Commissioner to take evidence of the witnesses allowed the writ application, that also without seeing the convenience of the defendants who will have to go to Mumbai. Learned counsel further submitted that in view of the provisions of Order 18 Rule 5 CPC, the order passed by the court below appears to be wholly justified. He also contended that prior affidavits have not been served upon the defendants for this purpose. On plain reading of the order impugned it appears that a mere direction has been given to the trial court to appoint Commissioner for examination of witnesses referred to above. The procedure laid down under the Code of Civil Procedure in this regard however necessarily shall be followed by trial court in passing the necessary orders appointing Commissioner for examination of the witnesses. At the same time, the defendants would also be at liberty to raise the legal question opposing such application. For the reasons aforementioned, therefore, we do not find any merit in this appeal. It is accordingly dismissed. (Mohammad Rafiq)J. (Narayan Roy)C.J. Parmar