FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. -------------------------------------------------------------------------------------------- Office notes, office Memoranda of | coram, appearance, court’s orders |Court’s or Judge’s orders. or directions and Registrar’s orders | WRIT PETITION NO.4855/2009 Kamalbai Narayan Nikam .. Petr V/s Babasaheb Asaram Fartale.. Respdt. ... Shri M.R.Sonawane,Adv.for Petr. Shri Y.V.Kakade,Adv.for R.sole. .... CORAM : R.K.DESHPANDE,J. DATE : 8/6/2010. 1] Heard learned counsel for respective parties. 2] This petition challenges the order dated 9/1/2009 passed by the learned Jt.C.J.J.D.,Shevgaon, rejecting application Exh.70 filed by the petitioner, who is original defendant no.8, for appointment of commissioner for measurement of the suit property. Notice was issued in this matter on 30/7/2009. Shri Kakade, learned counsel appears for respondent. By consent of parties, the petition is heard finally. 3] The learned Judge of the trial Court rejected the application for appointment of commissioner (Exh.70) by order dated 9/1/2009 and the observations made in para 5 of the said order are reproduced below : "[5] After reading the application and say, and reading the commission report of T.I.L.R. and hearing both the counsels, it appears that previously there was commission and its report is filed for the same subject matter. Now defendant no.8 has filed this application which seems to be untenable before setting aside the first commission report. After examining the present suit and the sister suit 79/05 about both the same suit property both the suit has one reports, it is clear that, if new commission is issued, it will not give any new fact before the Court." 4] It is thus apparent from the aforesaid observations that the Court commissioner was appointed on the application made by the original plaintiff and the commissioner has submitted his report. 5] The learned counsel for petitioner submits that objection has been raised to the report submitted by the commissioner. It is also apparent from the aforesaid observations made by the trial Court that said objection is yet to be decided and it is pending. The learned counsel for petitioner submits that since his objection is not decided, he has moved application [Exh.70] for appointment of another Court Commissioner. He apprehends that objection raised to the report submitted by the commissioner appointed on earlier occasion, may not be decided by the trial Court. However, there is no basis for such apprehension. The trial Court appears to be conscious of the fact that the Court commissioner appointed on earlier occasion, has submitted his report, the petitioner herein has raised his objection and it is yet to be decided. In this background, application for appointment of second commissioner, for carrying out measurement, is held to be untenable. Hence, no fault can be found to the findings recorded by the trial Court. It is however, expected that the trial Court would decide the objection raised by the petitioner to the report of the commissioner filed on the earlier occasion. 6] In view of above, there is no substance in this petition. Petition is therefore, dismissed. The interim order shall stand automatically vacated. (R.K.DESHPANDE) JUDGE umg/wp4855-09