Prabhuappa Mogalappa Nagthane vs Syed Fayaz Ali Sayed Hussain Ali
2016 Latest Caselaw 3715 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                          
                         WRIT PETITION NO. 4092 OF 2014




                                                 
     Prabhuappa s/o Mogalappa Nagthane                              PETITIONER
     Age - 65 years, Occ - Agriculture
     R/o Eerendeshwar, Taluka - Purna
     District - Parbhani




                                                
              VERSUS

     Syed Fayaz Ali s/o Sayed Hussain Ali              RESPONDENTS




                                        
     Age - 51 years, Occ - Labour,
     R/o Nutan Nagar,
     Parbhani
                              ig   .......
     Mr. Sudarshan J. Salunke, Advocate for the petitioner
     Mr. G. R. Syed, Advocate for the respondent
                            
                                   .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 11th JULY, 2016 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally with consent.

2. This is a writ petition fled by original defendant in regular

civil suit No. 275 of 2011 wherein his request for appointment of

court commissioner pursuant to Order XXVI, Rule 9 of the Civil

Procedure Code has been rejected.

3. Both the learned advocates agree upon that the suit has

not proceeded further save and except filing of affidavit of

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examination of chief of the plaintiff.

4. The dispute appears to be allotment of plot No.46 to the

parties by the housing society. The descriptions of the parties in

respect of plot No.46 are different.

5. Learned advocate for the petitioner refers to a judgment in

the case of "Vasant Tukaram Prabhu V/s Xalinibai Borcar Alias Shalinibai

Borkar" reported in 2014 (4) ALL MR 726. According to him, present

situation stands covered by the observations as are appearing

under paragraph No.23 of the judgment.

6. Having regard to the stage at which the application had

been moved, I deem it appropriate not to meddle with the

impugned order for the reason that upon evidence, if it occurs to

the parties that appointment of court commissioner would be

necessary to resolve the dispute properly, in such a case, such

an attempt can always be resorted to, to be decided by the court

taking into account facts and circumstances involved and law.

7. Writ petition, as such, stands disposed of. Rule is

discharged.

[SUNIL P. DESHMUKH, J.]

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