IMPORTANT POINT
The court established that the appointment of a Court Commissioner under Order XXVI Rule 9 CPC should follow the presentation of evidence by the parties, not precede it.

JUDGMENT:

1. Not on board. Mentioned. Taken on board.

2. Perused the praecipe dated 26.08.2024.

3. Heard Mr. Kulkarni, learned Advocate for Petitioners and Mr. Jadhav, learned Advocate for Respondent Nos. 1 to 3.

4. Present Writ Petition takes exception to the order dated 20.07.2024 passed by the learned Trial Court below Exh. 75 whereby Application filed by Plaintiffs (Respondent Nos. 1 to 4 herein) for appointment of Court Commissioner i.e. T.I.L.R. to undertake the exercise of survey, measurement and mapping of the Suit property is allowed. Suit is filed in the year 2021 seeking mandatory injunction as also it seeks an additional relief of removal of encroachment by Defendants on the Suit property. There is also a precursor Suit which was filed by Plaintiffs in the year 2015 for the same reliefs which remained pending for some time pursuant to which it was withdrawn by Plaintiff/s with liberty to file a fresh Suit. In that Suit, Plaintiffs had made an Application for appointment of T.I.L.R. as Court Commissioner which was rejected. Be that as it may, in so far as the present Suit is concerned, Plaintiffs approached the Court seeking mandatory injunction in respect of the Suit property necessarily on the basis of their title which would be evident from either a registered sale deed or if the Suit property is ancestral property then it would be based on partition and relevant revenue records as also revenue entries. Where Plaintiffs in such a case applies to the Court for mandatory injunction, the Application is on the basis of title which is contained in either a registered document or public documents. Plaintiffs would have to first prove entitlement on the basis of documentary evidence rather than immediately along with filing of the Suit proceeding seek appointment of Court Commissioner to identify the Suit property as also the extent of encroachment. If such an Application is permitted by the Trial Court at the outset itself, then it would amount to collection and gathering of evidence in the first instance even before Plaintiffs prove the case of encroachment. However, this does not mean that either the Plaintiff or the Defendant would be bereft of the right to apply for a Court Commissioner to identify the Suit property altogether. In a given case, after Plaintiffs’ witness action is over and evidence in rebuttal of Defendants is over, if a dichotomy still exists regarding identification of the Suit property as also the extent of encroachment on the basis of the evidence that is led by parties, the learned Trial Court can even suo moto on its own motion appoint a Court Commissioner to prepare a status report to assist the Court. Despite the above, it would also be open to either of the parties to make an Application on the strength of the evidence that is led by them and urge the Court to appoint a Court Commissioner if Suit property and encroachment is not identified. The question would be at what stage such an Application be permitted to be filed and allowed.

5. Mr. Jadhav has filed affidavit in reply dated 26.08.2024 and would contend that on the basis of certain decisions of this Court, it cannot be held that mere appointment of the Court Commissioner in the first instance will be for collection of evidence. He would submit that in the present case even at the interim stage despite the Exh. 5 Application having been dismissed, learned Trial Court can still appoint a Court Commissioner. I agree with the proposition which is contained in the decisions which are appended to the affidavit in reply, but it depends upon the facts of each case. Once again the question would be at what stage and whether the facts in the present case at the interim stage can allow appointment of Court Commissioner. If such Application is permitted and allowed in the first instance itself alongwith filing of the Suit, there is no reason for the Plaintiff to approach the Civil Court by way of Suit proceedings. He can very well exercise his rights