IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.6700 OF 2011.
Gangaram Baban Tagad
Vs
Sarubai Yashwant Tagad,
CORAM : S.V.GANGAPURWALA,J.
Date : 12.06.2013.
1. Heard.
2. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final hearing.
3. The trial Court has appointed the advocate as Court Commissioner to inspect the suit site and submit the report.
4. Mr.Sonavane, learned counsel submits that the Court is appointed to collect the evidence. For collection of evidence, the Court Commissioner can not be appointed. According to the learned counsel, even Exh.5 is not yet decided. At this stage, the application U/o XXVI Rule 9 of the C.P.C. can not be considered.
5. Mr.Palodkar, learned counsel for Respondent/defendant submits that the appointment of Court Commissioner would facilitate the Court in arriving at the just conclusion. Whether the blockage would result from the construction or not can be brought on record more effectively by the inspection of the Court Commissioner. It is not for collection of evidence but for elucidating the facts.
6. Exh.5 i.e. temporary injunction application is not yet decided. The said application is to be decided on the basis of prima facie case. The defendant has moved the application for appointment of Court Commissioner. It is for the plaintiff to prove his own case. If after the evidence is recorded, the Court finds it necessary to appoint Commissioner for proper disposal of the case, the Court at that stage can consider the application for appointment of Court Commissioner. It would be premature to consider the application U/o XXVI Rule 9 of the C.P.C., at this stage i.e. prior to decision on Exh.5. It is for the plaintiff to prove prima facie case, balance of convenience and irreparable loss.
7. In light of the above, the impugned order is quashed and set aside and the application for appointment of Court Commissioner is rejected. If after the evidence is adduced, the appointment of Court Commissioner is necessitated then at that stage, the parties may file the application for appointment of Court Commissioner, which application the Court shall decide on its own merits.
(S.V.GANGAPURWALA,J.)