Oral Judgment:-

1. Heard Shri Salunke, learned Advocate for the petitioner. He seeks leave to delete respondent Nos.2 and 3 from this writ petition, since contesting respondent No.1 is appearing on caveat.

Leave granted. Deletion to be carried out forthwith.

Heard Shri Sapkal, learned Advocate for respondent No.1.

2. Rule. By consent, Rule made returnable forthwith and heard finally.

3. The factual matrix, relevant at this stage, can be summarized as follows:-

Petitioner is plaintiff in RCS No.182 of 2007 filed in the court of learned Civil Judge (Senior Division), Ambajogai, District Beed. Copy of the plaint is not available with any of the counsel appearing for parties in this petition.

Shri Salunke, learned Advocate submits that the suit filed is for declaration and perpetual injunction. This position has not been disputed by Shri Sapkal, learned Advocate for respondent No.1.

4. Thesuit was followed by an application Exhibit 5, seeking temporary injunction against defendants. Said application was heard and finally allowed by the trial court on 312.2007. Defendants 1 to 3 were temporarily restrained from interfering and obstructing into the peaceful possession of plaintiff over the suit property, i.e. Plot No.2, situated at Ambika Society, till decision of the suit.

5. Said order was challenged by defendants by filing Misc. Civil Appeal No.4 of 2008, under Order

XLIII of the Code of Civil Procedure ("CPC"). Said appeal is pending in the court of learned Ad-hoc District Judge-I, Ambajogai, District Beed. Said appellate Court initially exercised the powers under section 151 of CPC and appointed a Court Commissioner. This order was challenged by plaintiff before this Court by filing Writ Petition No.488 of 2008, which is disposed of by this Court. Copy of the order is annexed at Exhibit "C" to this petition. The order impugned in the writ petition dated 11.2008, was quashed and set aside. The matter was remanded back. It was further observed that the first appellate court may consider the said issue afresh and then deal with the same, according to law, by passing a reasoned order.

Thereafter, it is not in dispute that respondent No. 1 filed an application under Order XXVI Rule 9 of CPC on 10.6.2008. This application is at Exhibit 25 in Misc. Civil Appeal No.4 of 2008. Said application, after hearing the parties came to be allowed by the first appellate court on 8.2008. This order is subject matter of the present petition.

6. Appointment of the Commissioner by the Civil Court is the matter of great concern in the trial of the suit. This court comes across many such orders in various writ petitions. From this view point, I have heard learned counsel for the parties at length.

7. Civil Procedural Law is a separate, distinct branch of law, which exercises a pervasive influence over all other branches of law, except criminal law and procedure. This branch comprehends the entire body of civil law, including the practice and procedure of the courts, which regulates the machinery and governs the administration of civil justice. It extends to every legal or equitable claim, right, relief of remedy properly brought before any court or tribunal, either inferior or superior, at first instance or on appeal. This branch of law may be regarded as comprising of three parts. They may be viewed as self contained compartments but as interrelated with and over lapping and interacting upon each other. First one is the institutional part, second one professional part and third one is the procedural part. This branch of law forms an indispensable part of the machinery of justice and operates as essential tool for enforcing legal rights and claims, for redressing or preventing the legal wrongs, for ascertaining legal defences and for such other ancillary purposes. In substance, civil procedural law is a necessary legal and social instrument for attainment of "Justice between the man and man".

The first uniform Civil Procedure Code was