FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WP/2868/2010 ANANDA DHUDKU PATIL (JIRE) AND ANR V/S GANABAI DHUDKU PATIL (JIRE) AND ORS … Shri V.P.Latange, Advocate for petitioners Shri A.S.Sawant, Advocate for respondents 1 & 2 … CORAM : P.B.MAJMUDAR,J. Dated : May 5, 2011 ... 1. By filing this Writ Petition under Article 227 of the Constitution of India, the petitioners have challenged the order passed by the learned Civil Judge (Junior Division), Sakri, District Dhule granting application Exhibit 33, dated 3.2.2010, appointing Court Commissioner. 2. In Regular Civil Suit No. 17 of 2009, temporary injunction application (Exhibit 5) was preferred by plaintiffs (present respondents 1 and 2) and during pendency of the said application, application Exhibit 33 came to be filed and allowed by the trial Court and one Advocate Shri Suryakant Sonar was appointed as the Court Commissioner to visit the suit lands, prepare map and submit the report to the Court. 3. Learned counsel for the petitioners submits that the learned trial Judge should not have appointed the Court Commissioner for collecting the evidence. However, it is countered by learned counsel for the plaintiffs that before the learned FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS (2) WP/2868/2010 Single Judge of this Court issued notice in the present Writ Petition on 7.4.2010, the trial Court's order was complied with and the Commissioner had submitted his report before the trial Court. Copy of the same is given to the learned counsel for the petitioners. 4. In my view, since now the Commission has already been executed and the Commissioner has given the report to the trial Court, it would not be proper to interfere with the discretionary order passed by the trial Court in the pending suit and further delay the proceedings. If the petitioners have not so far filed any objections to to the report of the Commissioner, they may file so within two weeks from today. If such objections are filed, the trial Court may consider them and after hearing both sides, pass an appropriate order, as to whether the report of the Court Commissioner should be accepted on record or not? If the report of the Court Commissioner is taken on record, the trial Court should proceed with the hearing of application Exhibit 5 for temporary injunction on its own merits based on the prima facie material adduced on record and after hearing both the sides. It is needless to say, while considering the application for temporary injunction under Order XXXIX Rule 1 & 2 of Code of Civil Procedure, the trial Court has to take in to FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS (3) WP/2868/2010 account the prima facie case, irreparable loss and balance of convenience in favour of the parties. The apprehension that the Court will decide the suit only on the basis of the report of the Court Commissioner cannot be accepted. 5. Interim order passed by the trial Court, which is discretionary in nature, cannot be interfered with by this Court while exercising extra ordinary jurisdiction under Article 227 of the Constitution of India. 6. In the result, Writ Petition stands disposed of in above terms. No order as to costs. (P.B.MAJMUDAR,J.) akl