At what stage of trial the court should appoint a court commissioner for measurement of suit property?

 While rejecting the application, learned Trial Court has

quoted the order passed by this Court in “Sanjay Balasaheb

Kanakdande v/s Vivek Surinder Mahajan and Another” as

follows:

“3. I find that this Court has consistently taken a view that a court commissioner should not be appointed until recording of oral evidence is concluded.

6. Needless to state, after recording of oral evidence is concluded, if either of the sides prefer an application for seeking appointment of a court commissioner, the Trial Court would consider the said application on its own merits”{Para 4}

5. Admittedly, so far, only application Exhibit-5 is decided and

recording of evidence is yet to begin.

6. There is no illegality or perversity in the order impugned in

the present petition. The Trial Court has observed that after

parties conclude their evidence, the request for appointment of

Court Commissioner can be considered.

7. In view of aforesaid, no case is made out by the petitioner

to exercise extraordinary writ jurisdiction. Writ petition is,

therefore, dismissed, with liberty to the petitioner to move such

application after conclusion of recording of oral evidence.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8215 OF 2023

Chandraprabha Namdeo Magre Vs Kamalbai Girjaba Bankar and Others 

[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 17 th JULY, 2023

1. The petitioner is aggrieved by order passed by learned Civil

Judge, Senior Division, (Corporation Court), Aurangabad,

thereby rejecting the application filed by the petitioner for

appointment of the Court Commissioner.

2. According to the petitioner, the respondents have

encroached on more than 6 feet area of the petitioner’s land and

to ascertain the exact encroachment, appointment of the Court

Commissioner is necessary.

3. Heard learned advocate for the petitioner. Perused the

memo of writ petition, the documents annexed along with it and

the impugned order.

4. While rejecting the application, learned Trial Court has

quoted the order passed by this Court in “Sanjay Balasaheb

Kanakdande v/s Vivek Surinder Mahajan and Another” as

follows:

“3. I find that this Court has consistently taken a view that a court

commissioner should not be appointed until recording of oral evidence is

concluded.

6. Needless to state, after recording of oral evidence is concluded, if

either of the sides prefer an application for seeking appointment of a court

commissioner, the Trial Court would consider the said application on its

own merits”

5. Admittedly, so far, only application Exhibit-5 is decided and

recording of evidence is yet to begin.

6. There is no illegality or perversity in the order impugned in

the present petition. The Trial Court has observed that after

parties conclude their evidence, the request for appointment of

Court Commissioner can be considered.

7. In view of aforesaid, no case is made out by the petitioner

to exercise extraordinary writ jurisdiction. Writ petition is,

therefore, dismissed, with liberty to the petitioner to move such

application after conclusion of recording of oral evidence.

[NITIN B. SURYAWANSHI]

JUDGE

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