Point of Law: Law relating to appointment of Court Commissioner is fairly well settled and that the Court Commissioner cannot be appointed for the purpose of collection of evidence.

JUDGMENT :

MILIND N. JADHAV, J.

1. By the present Writ Petition, the Petitioner has prayed for the following reliefs:

“(a) that the records and proceedings of Order dated 06.09.2021 passed by the Ld. 3rd Jt. C.J.S.D. Kalyan in an application filed for appointment of Court Commissioner below Exh.61 in R.C.S. No. 276 of 2016 be called for and after examining the legality, validity and propriety thereof the said impugned order dated 06.09.2021 passed by the Ld. 3rd Jt. C.J.S.D. Kalyan in an application filed for appointment of Court Commissioner below Exh.61 in R.C.S. No. 276 of 2016 be quashed and set aside.”

2. The Petitioner is the original Defendant No. 2 whereas Respondent No. 1 is the original Plaintiff. The impugned order dated 06.09.2021 is passed by the 3rd Jt. C.J.S.D. Kalyan on application filed by the original plaintiff for appointment of Court Commissioner in R.C.S. No. 276 of 2016.

3. Respondent No. 1 (original Plaintiff) has filed suit for declaration and injunction against the Petitioner (original Defendant No. 2) in respect of property bearing Survey No. 35, Hissa No. 5 admeasuring 0.30.8 H-R and more specifically pertaining to road having length of 130 meters and width of 7 meters crossing over from the property bearing Survey No. 35, Hissa No. 6, Survey No. 28, Hissa No. 1A and Survey No. 27, Hissa No. 1 belonging to the original Defendant. The dispute essentially pertains to the above road which is the subject matter of the suit. The suit stands dismissed against original Defendant Nos. 1 and 3 and is proceeded ex-parte against original Defendant No. 4.

4. Application below Exhibit 5 has been argued by the parties and is pending for orders before the trial court.

5. In the meanwhile, Respondent No. 1 has taken out Interim Application for appointment of Commissioner (below Exhibit 61) under Order XXVI Rule 9 read with Section 151 of the CPC to appoint the D.I.L.R. for measurement of the suit property and make a report of the extent of encroachment, if any on the suit property i.e. the approach road.

6. Parties have filed their replies and contested the Interim Application before the Trial Court.

7. By order dated 06.09.2021, the trial court allowed the application on the ground that since hearing on Exhibit 5 application was pending, it would be appropriate to place before the Court the actual status of the suit property to enable the Court to determine Exhibit 5.

8. The above order is impugned by the Petitioner (original Defendant No. 2) in the present Writ Petition on the ground that appointment of Court Commissioner will lead to collecting of evidence which may be detrimental to the case of the Petitioner before the trial court.

9. Shri A.A. Garge, learned counsel appearing for the Petitioner submits that the application below Exh.5 is pending for orders since 20.02.2020, on which date the parties concluded their oral arguments and filed written notes of arguments before the trial Court. He submits that the impugned order is not a speaking order; it has not been decided on merits; pleadings filed by the parties have not been considered by the trial Court before passing the impugned order; application of the original Plaintiff does not refer to any encroachment by the original Defendant No. 2 on the subject matter of the suit property; the original Defendant No. 2 (Petitioner herein) has requisite permission and sanction in respect of construction which is alleged to be an encroachment by the original Plaintiff in the suit and therefore the impugned order is not sustainable. He submits that the impugned order is unreasoned and a cryptic order and has been passed after a period of almost one year and seven months after conclusion of the hearing in the Exh.5 application by the Trial Court; the original Plaintiff intends to collect further and better evidence detrimental to the case of the original Defendant No. 2 (Petitioner herein) by seeking appointment of a Court Commissioner and this should not be permitted by the Cou