2-WP NO.5864 OF 2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.5864 OF 2022

PARVATIBAI ANNARAO DESHMUKH AND OTHERS

VERSUS

MANGLABAI VYANKAT PAWAR AND ANOTHER

. . .

Advocate for Petitioners : Mr. S. N. Rodge h/f. Mr. Satish P. Dhobale

. . .

CORAM : MANGESH S. PATIL, J.

DATED : 22 JUNE 2022

PER COURT :

1.

The petitioner is aggrieved by the rejection of his application

seeking appointment of court commissioner to carry out measurement.

2.

I have heard the learned advocate for the petitioners.

3.

The petitioners are the original plaintiffs’ seeking perpetual

injunction and also praying for carrying out measurement for fixation of the

boundaries. Even before the trial would begin and even before they step into

witness box, they sought assistance of the court for appointing the court

commissioner to carry out the measurement.

4.

This Court has consistently held that a party has to first make an

attempt to establish the facts and averments in the plaint and is not entitled to

1/2

2-WP NO.5864 OF 2022.odt

seek assistance of the court, even before stepping into the witness box and the

trial commences.

5.

Though the learned Judge of the trial court has not referred to

these decisions and is not coming out with the same reasoning, there is no

illegality in the order refusing to appoint the court commissioner.

6.

There is no merit in the petition, it is dismissed, keeping open the

option to the petitioners to once again apply for appointment of commissioner

at an appropriate stage.

( MANGESH S. PATIL, J.)

Tandale/-

2/2