1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4232 of 2009 (Sudhakar V. Waghmare v. Municipal Council, through its Chief Officer, Sindi, and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri K.R. Lule, Advocate for Petitioner. Coram : R.C. Chavan, J. Dated : 6 th October, 2009 Heard the learned counsel for the petitioner. This petition is directed against the order passed by the learned 2 nd Joint Civil Judge, Senior Division, Wardha, below Exhibit 52, in Regular Civil Suit No.46 of 2005, whereby the learned Judge rejected the application for appointment of TILR as Commissioner to carry out measurement. Initially, a similar application for appointment of TILR as Commissioner for carrying out the same measurement had been allowed by order passed below Exhibit 16. The TILR had, however, expressed his inability to carry out measurement, because the town in question was not surveyed and his office had no record or map of the said town. 2 A map of the town was made available from the Municipal Council, which the petitioner then filed. The petitioner thereafter applied for appointment of Commissioner afresh to measure the site in question. This application was opposed by the defendants. The learned Trial Judge held that a Commissioner need not be appointed, as, firstly, in her view, the plaintiff, that is the petitioner, would do the needful himself by getting a qualified person to do so and then prove the necessary facts by placing oral and documentary evidence on record. The learned Judge also observed that allowing the application, like the one before her, would amount to collection of evidence. Therefore, no fault can be found with the findings recorded by the learned Judge. Reliance by the learned counsel for the petitioner on a judgment of this Court in Vijay s/o Shrawan Shende and others v. State of Maharashtra and others, reported at 2009(4) ALL MR 601, is misplaced, since the judgment does not lay down the proposition that in such a case appointment of Commissioner is a must. Since the defendants had opposed the application, it is presumed that they would not obstruct the petitioner’s endeavour to get the site measured by a private Measurer, and if they do obstruct, the Court would be entitled to 3 draw an adverse inference. Therefore, the petitioner may himself, as suggested by the learned Trial Judge, proceed with the measurement and prove whatever facts he wants to, on the basis of measurement, by tendering evidence in the Court. It may be reiterated that if the defendants obstruct the endeavour of the plaintiff to get the site in question measured as per the municipal map, they would suffer. In view of this, the petition is dismissed. Judge pdl