Rajendra Sitaram Gujar And ... vs Radhabai Ankush Ghodke And Others
2017 Latest Caselaw 7755 Bom

                                                       WP/2054/2017
                                  1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                    WRIT PETITION NO. 2054 OF 2017

 1. Rajendra Sitaram Gujar
 Age 36 years, Occ. Agriculture
 R/o Tuljai Nagar, Nagar Road, 
 Beed.

 2.  Balu Sitaram Gujar
 Age 31 years, Occ. Agriculture
 R/o Tuljai Nagar, Nagar Road, 
 Beed.                                           ..Petitioners

 Versus

 1. Radhabai Ankush Ghodke
 Age 51 years, Occ. Agriculture
 and household, R/o Ghodka Rajuri,
 Tq. and Dist. Beed.

 2. Dhanraj Ankush Ghodke,
 Age 31 years, Occ. Agriculture
 R/o Ghodka Rajuri, Tq. and Dist. Beed.

 3. Nitin Ankush Ghodke,
 Age 29 years, Occ. Agriculture
 R/o Ghodka Rajuri, Tq. and Dist. Beed.

 4. Manoj Ankush Ghodke,
 Age 26 years, Occ. Agriculture
 R/o Ghodka Rajuri, Tq. and Dist. Beed.          ..Respondents

                                   ...
             Advocate for Petitioners : Shri H.V.Tungar  
           Advocate for Respondents : Shri G.K.Naik Thigale
                        h/f Shri D.D.Deshmukh
                                   ...

                    CORAM : RAVINDRA V. GHUGE, J.

Dated: October 03, 2017 ...

WP/2054/2017

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the

petition is taken up for final disposal.

4. The petitioners are aggrieved by the order dated

14.9.2016 passed by the trial Court, by which, application

Exhibit 23, filed by the petitioners / plaintiffs seeking

appointment of the Court Commissioner has been rejected.

5. I have considered the strenuous submissions of the

learned Advocate for the petitioners and the respondents.

Record reveals that Exhibit 23 was filed before the

commencement of the recording of oral evidence.

6. This Court has consistently held that a Court

Commissioner should not be appointed prior to the

commencement of the recording of oral evidence. It is only in

rare circumstances that such a Court Commissioner could be

WP/2054/2017

appointed even before the recording of oral evidence.

7. The petitioners apprehend that the defendants are trying

to encroach the suit property and hence it is necessary that a

Court Commissioner be appointed to find out whether there is

any encroachment. I do not find these circumstances to be rare

or peculiar in nature so as to permit the appointment of a Court

Commissioner before the recording of oral evidence.

8. As such, this petition is disposed off without interfering

with the impugned order. Needless to state, after the recording

of oral evidence, if either of the litigating sides desire to seek an

appointment of a Court Commissioner and file an application,

the trial Court would consider the said application on it's own

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

impugned order dated 14.9.2016.

9. Rule is discharged.

( RAVINDRA V. GHUGE, J. ) ...

akl/d