1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.5588 OF 2010. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders CORAM : S.V.GANGAPURWALA,J. Date : 23.09.2011. PER COURT : 1. Heard. 2. The present Respondent - original plaintiff filed a suit for declaration and mandatory injunction. During the pendency of the suit, the Respondent moved an application for appointment of Court Commissioner for the purpose of taking the statement of adjacent neighbours and the property holders and to make local investigation about the area as to whether a part of old building, the availability of the way etc. The said application is allowed. Aggrieved thereby, the present petition is filed. 3. Mr.K.K.Naik, learned counsel holding for Mr.Bhokarikar, advocate for the petitioner submits that the Commissioner could not have been appointed for collecting the evidence. The plaintiff 2 has to prove his own case. 4. Mr.Goyanka, learned counsel for the Respondent submits that the Commissioner can be appointed to assist the Court. The actual, physical position on the site could be brought on record by appointment of Court Commissioner and the discretion to that effect has been exercised by the trial Court. The learned counsel contends that the appointment of Court Commissioner is necessary for bringing on record the said factual position. 5. It is a trite law that the Commissioner can not be appointed to collect the evidence. The application was not made for carrying out any measurement or any assistance of an expert was required. The application was made to bring on record as to the area of the part of the old building, availability of way etc. The same can be proved by adducing evidence. This Court in a case of "Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others" reported in 2001 Mh.L.J. 959, has held that for the said purpose the Commissioner can not be appointed. 6. In light of the above, the Writ Petition is allowed. 7. Rule is made absolute in terms of prayer clause (B) and the application Exh.17 is rejected. However, if the Court finds that the measurement is necessary for the effective adjudication of the dispute and if the petitioner applies for the same , the Court 3 should consider the same on its own merits. (S.V.GANGAPURWALA,J.) Dt.23.09.2011. asp/office/wp5588.10 4