1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4805 OF 2008 ( Poonamchand Mangilalji Sisodia vs. Suganchand Ratanlal Chopada ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 16, 2008. Heard Shri Bhalerao, learned counsel for the petitioner and Shri Darne, learned counsel for the respondent. The learned counsel for the petitioner has stated that appointment of Commissioner is nothing but collection of evidence from spot. He states that such collection of evidence will prejudice the cause of present petitioner – defendant. Shri Darne, learned counsel for the respondent, on the other hand, points out that the learned trial Court was aware that the Commissioner cannot be appointed to collect evidence and it has found that the verification of spot was essential and for that purpose the Commissioner was appointed. Shri Darne, learned counsel further states that except Advocate Shete, who may have some bias in the matter, anybody can be appointed as Commissioner. During arguments, he has also relied upon the judgment in the case of Kisanlal Maniklal Rathi vs. Dinkar Yashwant Patil, 2 reported at 2003 (4) ALL MR 1083, to support the impugned order. The perusal of paragraph 5 of the impugned order shows that the Court below wanted to verify the position on the spot and the parties have yet not led any evidence on record. It is, therefore, apparent that both the parties may be prejudiced by the report which may come on record. The parties are at liberty to point out the position on the spot by producing witnesses or photographs. If after the evidence is brought on record, the Court finds that there is some confusion or discrepancy in the evidence, the Court is free to take recourse to appropriate provisions thereafter. The present respondent/ plaintiff can also move the Court at that time for such recourse if the circumstances so warrant. I am not in a position to maintain the order as passed. The same is accordingly quashed and set aside with liberty as mentioned above. No order as to costs. In view of the disposal of writ petition, Civil Application No. 8347 of 2008 has become infructuous. The same is disposed of as infructuous. JUDGE *GS.