Whether the court should appoint court commissioner before recording of evidence?

 Court Commissioner is normally not to be appointed

before the recording of oral and documentary evidence. It is in the rarest

of rare case that such an order could be passed.

4 In the case in hand, the grievance of the Petitioner/ Plaintiff is

that the Defendants are trying to create a new cart way and hence, the

Court Commissioner be appointed. The Court Commissioner can neither

be appointed on an apprehension of the litigating sides, nor for collecting

evidence. In the event, the Defendants commit any encroachment, the

Petitioner can prove the said aspect by leading oral and documentary

evidence. Before the recording of evidence has commenced, the Court

Commissioner should not be normally appointed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 1096 OF 2018

SHANTABAI PRALHAD ANANTWAD Vs TAHSILDAR TAHSHIL OFFICE LATUR AND OTHERS

CORAM: RAVINDRA V. GHUGE, J.

DATE :31st January, 2018

Per Court:

1 The Petitioner/ original Plaintiff is aggrieved by the order

dated 08.01.2018 passed by the Trial Court by which, the application

Exhibit24

filed by the Petitioner seeking the appointment of a court

commissioner under Order 26 Rule 9 of the Code of Civil Procedure, has

been rejected.

2 The learned Advocate for the Petitioner has strenuously

criticized the impugned order. It is contended that the suit has been filed

for seeking permanent injunction. Though the Defendants have denied the

contentions of the Petitioner, as there is no cart way available from the suit

land for a long time, the Defendants are trying to create a new cart way

from the land of the Plaintiff. It was for this purpose that local inspection

was sought by the Plaintiff.

3 This Court, in a series of orders as in Gangaram Baban Tagad

and others vs. Sarubai Yashwant Tagad and others, Writ Petition

No.6700/2011 decided on 12.06.2013 (Coram : Justice S.VGangapurwala,

J.), has held that the Court Commissioner is normally not to be appointed

before the recording of oral and documentary evidence. It is in the rarest

of rare case that such an order could be passed.

4 In the case in hand, the grievance of the Petitioner/ Plaintiff is

that the Defendants are trying to create a new cart way and hence, the

Court Commissioner be appointed. The Court Commissioner can neither

be appointed on an apprehension of the litigating sides, nor for collecting

evidence. In the event, the Defendants commit any encroachment, the

Petitioner can prove the said aspect by leading oral and documentary

evidence. Before the recording of evidence has commenced, the Court

Commissioner should not be normally appointed.

5 Considering the above, this Writ Petition is dismissed.

6 However, it be noted that after recording of oral evidence, if

either of the litigating sides make an application for appointment of a

court commissioner, the Trial Court would consider the same on it's own

merits and without being influenced by it's observations set out in the

impugned order dated 08.01.2018.

kps (RAVINDRA V. GHUGE, J.)

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