wp5113.11.odt 1/2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.5113/2011 Syed Yakub S/o Syed Latif and another -vs- Afasr Khan S/o Teleban Khan and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri S.A. Mohta, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : 12.10.2011. Heard the learned counsel for the petitioners. The petitioners are the original plaintiffs. A suit was filed by the petitioners for permanent injunction restraining the defendant No.1 from constructing his house without leaving five feet open space towards the southern side of the plot of the plaintiffs. The suit was partly decreed. In a first appeal filed by the defendant No.1, wherein a cross appeal was filed by the petitioners, the petitioners filed an application for appointment of a Court Commissioner. The first appellate Court, however, by the impugned order dated 04/08/2011 rejected the application. There is no error in the order passed by the first appellate Court on 04/08/2011 rejecting the application filed by the petitioners. The first appellate Court rightly observed that the matter was fixed for argument and at that stage the application was filed by the petitioners for protracting the wp5113.11.odt 2/2 proceedings. It is necessary to note that the petitioners had not filed an application for appointment of a Court Commissioner before the trial Court. The first appellate Court rightly found that the application for appointment of a Court Commissioner was not filed before the trial Court and instead was filed for the first time before the first appellate Court when the matter was at the stage of argument. The appointment of a Court Commissioner cannot be made for collecting the evidence and hence, it cannot be said that the first appellate Court was in error in rejecting the application filed by the petitioners. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE