Whether court can allow appointment of court commissioner before completion of evidence of both parties?

  This Court has consistently held

that the Court Commissioner should not be

appointed until the recording of oral

evidence is completed. Some of the orders

passed by this Court are as under :-

(1) Syed Mushtaque Ahmad Syed Ismail and

others Vs. Syed Ashique Ali Khan Hatdar [2011

(6) Mh.L.J. 334 = 2012 (2) Bom. C.R. 790],

(2) Nalubai Shinde and others Vs. Gopinath

Shinde [2011(2) Mh.L.J.991],

(3) Dnyandeo Vithal Salke and others vs.

Dagdu Kadar Inamdar, 2017 (3) Mh.L.J. 314.

(4) Chandrakant Kashinath Dike and others vs.

Smt.Satyabhama Vishwanath Dike and another,

Writ Petition No.8877/2013 (Aurangabad Bench)

decided on 17.01.2014.

(5) Dhondiba Bapu Zaware vs. Santosh Paraji

Zaware and others, Writ Petition No.4756/2014

(Aurangabad Bench) decided on 08.12.2014.

(6) Dipak Laxman Gadekar and anr. Vs. Trimbak

Ravji Shirsath, Writ Petition No.

11593/2015 (Aurangabad Bench), decided on

23/08/2017,

(7) Mahadeo s/o Vaijanath Bembalge Vs.

Chandrakala w/o Ramesh Athane, Writ

Petition No. 832/2018 (Aurangabad Bench),

decided on 04/06/2018,

(8) Dhondiram Nivrutti Pawar through L.Rs.

Vs. Laxman Khashaba Pawar and others, Writ

Petition No. 1196/2017, (Bombay Bench),

decided on 23/01/2018,

(9) Sanjay Balasaheb Khandare Vs. Vivek

Surinder Mahajan and another, Writ Petition

No. 4958/2018,(Aurangabad Bench), decided

on 29/01/2018.

(10) Bhika Mahadu Katkar and another Vs. Arjun

Bhimraj Ghode, WP No.1890/2019 (Aurangabad

Bench) decided on 09/07/2019.

(11) Sitaram Suklal Patil and another Vs.

Vasudeo Suklal Patil, WP bNo.9626/2016

(Aurangabad Bench), decided on 31/07/2017.

(12) Sarjerao Nathu Bangar and others

Vs. Namdeo Keru Bangar and others, WP

No.13441/2019 (Aurangabad Bench), decided

on 07/11/2019.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.14551 OF 2019

ASHOK HARDAYAL MEHTA Vs RAHUL TATYARAM MANDAGE AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.

DATE : 12th December, 2019.

PER COURT :-

1. On 03/12/2019, this Court had passed the

following order:-

“1. None for the petitioner.

2. I have perused the impugned order

dated 05/08/2019 by which, the Trial Court

has rejected application Exhibit-51 filed by

the petitioner/original defendant No.6 in

Special Civil Suit No.53/2016. The

petitioner had sought appointment of a Court

Commissioner.

3. This Court has consistently held

that the Court Commissioner should not be

appointed until the recording of oral

evidence is completed. Some of the orders

passed by this Court are as under :-

(1) Syed Mushtaque Ahmad Syed Ismail and

others Vs. Syed Ashique Ali Khan Hatdar [2011

(6) Mh.L.J. 334 = 2012 (2) Bom. C.R. 790],

(2) Nalubai Shinde and others Vs. Gopinath

Shinde [2011(2) Mh.L.J.991],

(3) Dnyandeo Vithal Salke and others vs.

Dagdu Kadar Inamdar, 2017 (3) Mh.L.J. 314.

(4) Chandrakant Kashinath Dike and others vs.

Smt.Satyabhama Vishwanath Dike and another,

Writ Petition No.8877/2013 (Aurangabad Bench)

decided on 17.01.2014.

(5) Dhondiba Bapu Zaware vs. Santosh Paraji

Zaware and others, Writ Petition No.4756/2014

(Aurangabad Bench) decided on 08.12.2014.

(6) Dipak Laxman Gadekar and anr. Vs. Trimbak

Ravji Shirsath, Writ Petition No.

11593/2015 (Aurangabad Bench), decided on

23/08/2017,

(7) Mahadeo s/o Vaijanath Bembalge Vs.

Chandrakala w/o Ramesh Athane, Writ

Petition No. 832/2018 (Aurangabad Bench),

decided on 04/06/2018,

(8) Dhondiram Nivrutti Pawar through L.Rs.

Vs. Laxman Khashaba Pawar and others, Writ

Petition No. 1196/2017, (Bombay Bench),

decided on 23/01/2018,

(9) Sanjay Balasaheb Khandare Vs. Vivek

Surinder Mahajan and another, Writ Petition

No. 4958/2018,(Aurangabad Bench), decided

on 29/01/2018.

(10) Bhika Mahadu Katkar and another Vs. Arjun

Bhimraj Ghode, WP No.1890/2019 (Aurangabad

Bench) decided on 09/07/2019.

(11) Sitaram Suklal Patil and another Vs.

Vasudeo Suklal Patil, WP bNo.9626/2016

(Aurangabad Bench), decided on 31/07/2017.

(12) Sarjerao Nathu Bangar and others

Vs. Namdeo Keru Bangar and others, WP

No.13441/2019 (Aurangabad Bench), decided

on 07/11/2019.

4. Though this petition appears to be

devoid of merits, I am adjourning it for

passing orders on dismissal on 12/12/2019.

Needless to state, there shall be no adinterim

relief.”

2. The learned Advocate for the petitioner has

vehemently criticized the impugned order. He draws my

attention to the grounds formulated in the memo of the

petition and submits that he had put-forth two prayers;

one for inspecting the land to find out the possession

over the said land, another prayer that the land should

be measured, boundaries be fixed and the map be

prepared.

3. It is settled law that a Court Commissioner

cannot be appointed for tracing out the possession of

the litigating parties. This amounts to collection of

evidence. So also, considering the orders passed by

this Court reproduced above, a Court Commissioner can

be appointed after the recording of oral evidence has

concluded.

4. In view of the above, I do not find that the

impugned order calls for any interference. This

petition being devoid of merits, is therefore,

dismissed.

5. Nevertheless, after the recording of oral

evidence is concluded in the matter, if an application

for appointment of a Court Commissioner is preferred by

any litigating side, the Trial Court would consider the

said application on it's own merits and without being

influenced by the order passed below Exh.51.

( RAVINDRA V. GHUGE, J. )