1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

932 WRIT PETITION NO.6323 OF 2022

BAPUSAHEB DAMU PACHORE

VERSUS

DNYANDEO NAMDEO PACHORE AND OTHERS

...

Advocate for Petitioner : Mr. Prakash Bhaushaeb Shirsath

Advocate for Respondent Nos.1 to 5 : Mr. V.H. Dighe

Advocate for Respondent Nos.6 to 8 : Mr. S.V. Suryawanshi

…

CORAM : SANDEEP V. MARNE, J.

DATE : 15-12-2022

PER COURT :

.

By this petition, petitioner has challenged the order

dated 28.04.2022 passed by 2^nd Jt. Civil Judge Senior Division,

Kopargaon allowing application filed by defendant nos.1 to 5 under

order-XXVI, Rule-9 of the Code of Civil Procedure for appointment of

Court Commissioner for measurement of lands of plaintiff and

defendant nos.1 to 5.

2.

It appears that one measurement only of defendants’

land is already conducted by the office of the District Superintendent

of Land Records. Plaintiff has filed a suit contending that on the basis

of such measurement map, the defendants are interfering in

plaintiff’s possession in the land. The suit is therefore filed for

injunction as well as declaration that the measurement map dated

18.09.2020 is illegal. The trial Court has allowed the application for

GGP

2

temporary injunction filed by plaintiff and has restrained defendants

from interfering in plaintiff’s possession over the suit property and

appeal against the said order granting temporary injunction dated

07.09.2021 pending before the District Court.

3.

The issues in the suit are yet to be framed. At such a

stage, defendant nos.1 to 5, after filing their written statement on

23.11.2021 filed application at Exh.65 on 01.04.2022 seeking

appointment of Court Commissioner for measurement of land. The

application has been allowed by the trial Court by order dated

28.04.2022. It appears that as of now the trial Court is yet to fame

issues and the parties are yet to lead their evidence. Therefore it is

incomprehensible as to what was the occasion by the trial Court to

measure the land through Court Commissioner especially after it has

already decided the application for temporary injunction. It is trite

that Court Commissioner cannot be appointed in order to enable the

parties to collect evidence. The stage at which the application is

allowed by the trial Court would give an indication that the

appointment of Court Commissioner is sought by defendant nos.1 to

5 possibily to collect evidence. Parties are yet to elucidate their case

by adducing evidence. Defendants are already armed with one

measurement map in their favour. They are yet to examine the

Officer, who has carried out the measurement. At this stage

GGP

3

appointment of Court Commissioner for measurement of the land

was clearly unwarranted.

4.

This Court in Shantaram Dattatray Kekan & Ors vs.

Bhausaheb Karbhari Kekan & Anr, Writ Petition No.14046 of 2021

decided on 05.12.2022 held that there is no hard and fast rule that

appointment of Court Commissioner can be done by a Court at a

particular stage in the suit. However considering the peculiar facts

and circumstances of the present case, I am of the view that

appointment of Court Commissioner at this stage is clearly

unwarranted.

5.

In view of the above, the following order is passed.

ORDER

(i)

Writ petition is allowed.

(ii)

The impugned order dated 28.04.2022 is set aside.

However defendant nos.1 to 5 will be at liberty to file an application

for appointment of Court Commissioner for measurement of land

after adducing their evidence and in the event of such application

being made, the same shall be decided by the trial Court strictly on its

own merits without being influenced either by the order dated

28.04.2022 or by the present order.

(

SANDEEP V. MARNE, J. )

GGP