Bombay High Court
Kamalnarayan Jagannath Jaiswal vs Subhash Ramgopal Bharuka on 4 October, 2025
2025:BHC-AUG:27877
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
905 WRIT PETITION NO. 742 OF 2021
KAMALNARAYAN JAGANNATH JAISWAL
VERSUS
SUBHASH RAMGOPAL BHARUKA
.....
Mr. M. P. Kale., Advocate for the Petitioner
Mr. Anand V. Patil Indrale, Advocate for Respondent
WITH
WRIT PETITION NO. 10907 OF 2024
KAMALNARAYAN JAGANNATH JAISWAL
VERSUS
SUBHASH RAMGOPAL BHARUKA
Mr. M. P. Kale., Advocate for the Petitioner
Mr. Anand V. Patil Indrale, Advocate for Respondent
CORAM : R. M. JOSHI, J.
DATE : 4th OCTOBER, 2025
P.C. :-
1. By consent of both sides, heard finally at the stage of
admission.
2. These Petitions take exception to the orders passed by the
Trial Court of appointment of Court Commissioner under Order 26 Rule
9 of the Code of Civil Procedure (for short 'CPC') at the intance of
Defendant.
3. Petitioner filed suit for injunction against the Defendant who
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is the owner of the land adjoining the plot of the Plaintiff. The Defendant
filed counter claim making allegation of encroachment being carried out
by the Plaintiff on the plot of the Defendant and sought possession
thereof. Before evidence would commence, Application came to be
moved by the Defendant for appointment of Court Commissioner under
Order 26 Rule 9 of the CPC. Initially an Advocate was appointed as a
Court Commissioner. However, later on another Application was moved
for an expert to the appointed at Court Commissioner and consequently,
the District Superintendent of Land Record came to be appointed as
Court Commissioner to carry out measurement of plot of 4/250A and
4/247 situated at Samarthnagar Mohalla, Talukq Kannad. A correction
was sought in the order from the Trial Court since plot of the Defendant
was not included in the order issuing direction for the measurement of
plots by Expert.
4. Petitioner/Plaintiff is aggrieved the impugned order
essentially on the ground that at pre-mature stage Trial Court allowed
the Application for appointment of Court Commissioner.
5. Learned Counsel for the Petitioner submits that the parties
cannot be permitted to collect evidence by appointment of Court
Commissioner. It is his submission that in view of the catena of
judgments of this Court that the appointment of Court Commissioner
could be done for the purpose of elucidation of the matter in issue and
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that could only be done after the parties lead evidence.
6. Learned Counsel for the Respondent-Defendant supported
the impugned order by relying upon the judgment of Co-ordinate Bench
of this Court in case of Pandit Vithal Landage Versus Vishnu Govind
Pawar and Another, 2025 DGLS(Bom.) 1617.
7. There is no dispute about the position of law that the Court
Commissioner cannot be appointed for the purpose of collecting
evidence on behalf of the parties. Further in number of judgments of
this Court it is held that an Application could be filed under Order 26
Rule 9 of the CPC for appointment of Court Commissioner in order to
elucidate the matter in dispute, which is clarification of the matter.
Needless to say that for the purpose of any clarification by the
appointment of Court Commissioner, there must be some evidence led
by party, unless facts are undisputed.
8. The judgment in case of Pandit Vithal Landage (supra) in
respectful view of this Court does not taken into consideration the
embargo created by law on the parties to collect evidence through Court
Commissioner. Herein this case, the evidence is yet to be commenced.
It is open for the Defendant to seek appointment of Court Commissioner
in order to seek elucidation of matter is controversy. It is however,
cannot be permitted to the Defendant to collect evidence by
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appointment of Court Commissioner.
9. Having regard to the peculiarity of the facts involved in the
present case, this Court is of the view that the order of appointment of
Court Commissioner is passed at pre-mature stage. Hence, impugned
orders deserve interference. Accordingly, Petitions stand allowed.
Impugned orders are set aside. It is, however, clarified that appropriate
stage of the proceedings, it would be open for the parties to seek
appointment of Court Commissioner. If any such Application is filed,
Trial Court to decide the same in accordance with law.
10. Learned Counsels for both sides request for directing Trial
Court to decide the said expeditiously since the suit is of year 2015.
Having regard fact that the suit is pending for period of about 10 years
now, Trial Court to decide the same expeditiously and in any case within
a period of six months from today.
(R. M. JOSHI, J.)
ssp
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