1 WP 2685.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2685 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.P.Brahme , Advocate for the Petitioner. Mr. S.T.Salunke,Advocate for the Resp.Nos. 1 to 5 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 14/06/2011 PER COURT : 1. Notice for final disposal was issued by this Court vide order dated 6/4/2011. As such, the petition is being disposed off finally. 2. The only limited grievance of the petitioner in the present Writ Petition is that the petitioner has an objection to the name of the Commissioner, who is appointed under Order XXVI Rule 1 of the Code of Civil Procedure on the ground that he is related to the defendant no. 1, who is to be examined. 3. Mr. Brahme, the learned counsel for the petitioner submits that the Commissioner, who is 2 WP 2685.2011 appointed to take the evidence of defendant no. 1 has close terms with the defendant no. 1, so also his name does not appear in the list approved by the District Judge for the said purpose. As such, the present petitioner has sought for appointing any other person as a commissioner to record the evidence of the defendant no. 1. 4. Mr. Salunke, the learned counsel for the respondent nos. 1 to 5 supports the order passed by the trial court and submits that the vague application has been submitted without any substance. The trial court has rightly rejected the application. Just because the name of the said commissioner is not in the list approved by the District Judge, that would not mean that he is incompetent to record the evidence of the defendant no. 1. In fact, the plaintiff is also an Advocate. The commissioner appointed is an Advocate. The defendant no. 1 is the father of the plaintiff. As such, it would be too far-fetched to contend that the defendant no. 1 is a close friend of the commissioner Mr. S.M.Ranjawan, Advocate, who is appointed as a commissioner. If the application is allowed, the same would cast doubt on the integrity of the learned counsel, who is appointed as a commissioner. 3 WP 2685.2011 5. No doubt, the application does not spell out the ingredients which would show that the commissioner, who is appointed, is a close friend of defendant no. 1. It is also not disputed that the name of the learned commissioner appointed does not appear in the list approved by the District Judge for the said purpose, but still that would not mean that the commissioner would be incompetent. 6. The commissioner for such purpose has to be appointed by the consensus of the parties, otherwise it would give rise to the allegations subsequently. To eradicate this eventuality, I deem it appropriate to appoint learned Advocate from the list approved by the District Judge for the said purpose. This does not mean that a shadow of doubt is cast upon the learned Advocate, who was appointed as a commissioner. This is only to avoid any future embarrassment that is likely to arise, the present order is passed. 7. Both the learned counsel on instructions of the respective parties, agree for the name of Mr. K.S. Shaikh, Advocate to be appointed as a commissioner for recording the evidence of defendant no. 1. 4 WP 2685.2011 8. In view of the above, the impugned order is quashed and set aside and Mr. K.S. Shaikh, Advocate is appointed as a commissioner to record the evidence of defendant no. 1. The learned trial Judge shall issue necessary writ to Mr. K.S.Shaikh, Advocate for recording the evidence of defendant no. 1. 9. The Writ Petition is allowed with aforesaid observations and directions. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 2685.2011