1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1120 OF 2009. Yamunabai W/o Balkrishna Deshpande, Age 50 years, Occu. Househod, Through its Power of Attorney Holder, Renukadas S/o Balkrishna Deshpande, age 43 years, Occu. Service, R/o Kranti chowk, Parbhani Dist. Parbhani. .. PETITIONER. VERSUS 1) Ravindrasingh S/o Dilipsingh Parihar, age 45 years, Occu. Agril. R/o Parbhani, Tq. & Dist. Parbhani. 2) The Municipal Council, Parbhani Through its Chief Officer, Parbhani, Dist. Parbhani. 3) The Administrator, The Municipal Council, Parbhani Dist. Parbhani. . RESPONDENTS. ... Shri V.P. Latange, Advocate for Petitioner. Shri S.S. Rathi, Advocate for Respondent No. 1. Shri Satyajit Bora, Advocate for Respondent No. 3. (absent) CORAM :- S.S. SHINDE, J. RESERVED ON: 29.01.2010. PRONOUNCED ON: 02.02.2010. PER COURT: 2 1. Heard learned counsel appearing for the petitioner as well as respondent No. 1. Though the respondent Nos. 2 & 3 are duly served none appears for them. 2. Rule, returnable forthwith. With the consent of the parties, heard finally at the stage of admission. It is the case of the petitioner that, he is original defendant No. 3 in R.C.S. No. 258 of 2005 pending before the Civil Judge Senior Division, Parbhani for perpetual injunction directing the original defendant Nos. 1 & 2 to demolish the illegal construction in respect of house bearing Municipal number 36, ward No. 11. The said suit is filed by the respondent No. 1 herein. The relief claimed in the suit is to demolish the stair case, which is obstruction on the public way in front of house baring municipal No. 36, ward number 11, Parbhani and also for perpetual injunction against the defendants restraining them from allowing illegal 3 construction in front of the house number 36. The original plaintiff i.e. respondent No. 1 herein filed application on 15-10-2006 Under Order 26, Rule 9 of Civil Procedure Code to appoint the Court Commissioner for local inspection. The said application came to be allowed and Court Commissioner was appointed. On 18-10-2005, the original plaintiff’s surprisingly filed application recalling the earlier order and for calling back the commissioner which was appointed as per the request of the plaintiff himself. It is further case of the petitioner that, the plaintiff has adduced his evidence, by and examining himself and also the Town Planner of Municipal Council, Parbhani and relied on the documents prepared by the Municipal Sanitary inspector and also map prepared by the Draftsman. On 16-12-2008 the plaintiff again filed application Under Order 26 Rule 9 of Civil Procedure Code for appointment of the Town Planner Court Commissioner. By order dated 20-01-2009 the 2nd Jt. Civil Judge, Senior 4 Division, Parbhani was pleased to allow the application and appointed Taluka Inspector of Land Records and City Surveyor as a Court Commissioner. Hence, this writ Petition is filed by the Original Defendant No. 3. 3. The learned counsel appearing for the petitioner submitted that, earlier the application filed by the original plaintiff for appointment of Court Commissioner was entertained by the Court below and accordingly, Commissioner was appointed. However, the original plaintiff again filed application for re-calling the said order of appointing Court Commissioner. Therefore, the learned counsel would submit that, the original plaintiff having exhausted remedy of filing application for appointment of Court Commissioner, and subsequently seeking recall of Court Commissioner, second application again filing for the same purpose, is abuse of process of law and Court. Therefore, learned counsel appearing for the petitioner would submit that, on this ground, the Writ petition deserves to be allowed. The learned counsel appearing for the 5 petitioner further submitted that, the Court Commissioner cannot be appointed to collect the evidence. The learned counsel appearing for the petitioner in support of his contention invited my attention to the judgment of this Court in the case of Sushilabai Dhanbaji Kadu V/s. Birju Mangal Pache & others, reported in 2006(5) Bom.C.R. 859. The learned counsel appearing for the petitioner, relying on the said judgment would submit that, it is not obligatory that in every case a Commissioner be appointed to ascertain position. The Court has to go by evidence tendered before it. The learned counsel appearing for the petitioner submitted that, when Court Commissioner was appointed on earlier application preferred by the original plaintiff, it was not necessary to appoint Court Commissioner second time by entertaining another application filed by the original plaintiff. The learned counsel appearing for the petitioner would submit that, the conduct of the original plaintiff to file first application for appointment of the Court Commissioner, and after Court Commissioner was appointed, again filing 6 application for recalling the said order, amounts to abuse of process of law, and therefore, learned counsel appearing for the petitioner would submit that, Writ Petition deserves to be allowed. The learned counsel appearing for the petitioner in support of his contention invited my attention to the pleadings in the petition and grounds taken therein and submitted that, as a consequence of interim relief granted by this Court, the order impugned in this petition had not taken effect and the court below had fixed the matter for pronouncement of judgment, however, same has not been pronounced in view of pendency of this petition. 4. The learned counsel appearing for the respondent No. 1 vehemently opposed the prayers made in the petition and submitted that, the earlier application which was filed for appointment of Court Commissioner was with a prayer to see that, whether the unauthrorised construction is going on the disputed site and second application was filed for measurement of site in dispute and reliefs claimed therein are 7 different. The Sum and substance of the arguments advanced by the original plaintiff is, the earlier application was filed for different relief and second application was filed for measurement of land and to find out encroached portion on the land, and therefore, the second application was rightly entertained by the Court below and Court Commissioner was appointed to see as to whether the land in question is encroached by the petitioner herein and to what extent encroachment is there. The learned counsel appearing for the respondent No. 1 in support of his contention placed reliance on the judgment of this Court in case of Kisanlal Manilal Rathi V/s. Dinkar Yashwant Patil, reported in 2003 (Supp.2) Bom.C.R. 329 (Nagpur Bench), and submitted that, order passed by the Court below directing appointment of Court Commissioner is perfectly sustainable in law. Though the respondent Nos. 2 & 3 are duly served, none appears for them today. It would be relevant to mention at this 8 stage that, though this Court has issued notices to the respondents way back on 24-02-2009, the respondents have chosen not to file reply and in that sense the pleadings in the petition remain un-controverted on record. 5. I have heard learned counsel appearing for the petitioner and respondent No. 1 at length, the careful perusal of the documents placed on record will show that, application for appointment of Court Commissioner was filed by the respondent No. 1 on 15-10-2005 Under Order 26 Rule 9 of Civil Procedure Code, and accordingly, the Court Commissioner came to be appointed. It has also come on record that the respondent No. 1 filed another application on 18-10-2005 for recalling the earlier order appointing Court Commissioner. In my opinion, this conduct of the original plaintiff i.e. respondent No. 1 herein is not understandable. It has further come on record that, substantial part of evidence was completed by the plaintiff and in support of his contention the Town Planner, Municipal Council, Parbhani was also examined and the document 9 prepared by the Municipal Sanitary Inspector was also placed on record with map by the draftsman. Therefore, there was sufficient evidence which was placed on record by the original plaintiff, not only in the nature of documents but Town Planner of Municipal Council, Parbhani was also examined as witness. After said evidence was brought on record, another application on 16-12-2008 was filed by the original plaintiff Under Order 26 Rule 9 of Civil Procedure Code for appointment of Town Planner as Court Commissioner, which was unwarranted and it was desperate attempt to collect further evidence in support of plantiff’s case. It is true that, there is a provision Under Order 26, Rule 9 of Civil Procedure Code, under which the Court can entertain prayer for appointment of Court Commissioner. However, it will depend upon facts and circumstances of each case to see, whether it is necessary to appoint Court Commissioner or not? As held by this Court in Sushilabai Dhanbaji Kadu (Supra), it is not obligatory that in every case a Court 10 commissioner should be appointed to ascertain position and further Court has to go by evidence tendered before it. If the facts of this case are taken into consideration, as stated above, the plaintiff first filed application for appointment of Court Commissioner, and after Court Commissioner was appointed by allowing the application of the original plaintiff, to file another application to recall the said order appointing the Court Commissioner. This conduct of the respondent No. 1 certainly dis-entitles him to file another application for appointment of the Court Commissioner. When another application for appointment of Court Commissioner was filed, virtually substantial part of the evidence was led and completed on behalf of the plaintiff, and thereafter, again application was filed for appointment of Court Commissioner. As stated here-in-above, filing another application was an attempt by the plaintiff to collect evidence in support of his case. Therefore, in my view, the order dated 20-01-2009 passed by the Jt. Civil Judge Senior Division, Parbhani appointing Court Commissioner on an application 11 filed by the original plaintiff was unwarranted at that stage. It is also relevant to note that, the plaintiff had adduced his part of evidence and examined himself and also Town Planner, Municipal Council, Parbhani and relied on the document of Municipal Sanitary Inspector and also map prepared by the draftsman, and thereafter, application was filed for appointment of Court Commissioner. Therefore, once evidence was completed by the plaintiff, it was not necessary for the Court below to entertain the application for appointment of another Court Commissioner as prayed by the plaintiff. This Writ Petition was heard for admission on 24-02-2009, while issuing notices to the respondents this Court has granted ad-interim relief in terms of prayer clause ‘D’, as a consequence of which the order dated 20-01-2009 appointing Court Commissioner came to be stayed. It is informed by the counsel appearing for the petitioner that, matter was fixed on 05-12-2009, 8-12-2009 and 20-12-2009 for pronouncement of judgment. However, judgment is not pronounced 12 since writ petition is pending before this Court. Taking over all view of the matter, in my view, the impugned order is not sustainable and same is quashed and set aside. Rule is made absolute to the above extent. Petition stands disposed of. It is needless to mention that, since the Court below has fixed the matter for pronouncement of the judgment, after pronouncement of the judgment, it will be open for either of the parties to agitate all points including the appointment of the Court Commissioner before the appellate forum. With above observations the petition is allowed and disposed of. [ S.S. SHINDE, J ] SDM* WP1120.09