Whether the court should appoint court commissioner before hearing on temporary injunction application?

 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. {Para 6}

UNREPORTED

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.)

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