Mir Farkunda Ali Osmani Mir Gazanfar Ali v. Syed Mushtakh Ali Syed Munwar Ali Died Through Lrs Sayed Ashfakh Ali Syed Mushtak Ali And Others

{1} 917-WP-3722-2023

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.3722 OF 2023 Mir Farkunda Ali Osmani Mir Gazanfar Ali

...Petitioner

Versus

Syed Mushtakh Ali Syed Munwar Ali Died Through Lrs Sayed Ashfakh Ali Syed Mushtak Ali And Others

...Respondents

Mr. Shaikh Shoyab, Advocate for the petitioner. Mr. Fayaz Patel, Advocate for respondent No. 2. .......

[CORAM : NITIN B. SURYAWANSHI, J.] DATE : 31 st MARCH, 2023 ORDER :

1.

Challenge in this petition is to the order passed by 3rd Joint Civil Judge Junior Division, Ambajogai, below Exhibit-174 in Regular Civil Suit No. 106 of 2010, thereby rejecting the application filed by plaintiff under Order 26 Rule 9 of Code of Civil Procedure.

2.

Heard the learned advocate for the petitioner and learned advocate for respondent No. 2. Perused the grounds raised in the petition, annexures thereto and the impugned order.

Bhagyawant Punde

{2} 917-WP-3722-2023 3.

It is not in dispute that the application for appointment of Court Commissioner was filed at a premature stage. Though, issues are framed, yet the evidence has not commenced.

4.

It is consistently held by this Court that appointment of Court Commissioner cannot be made at a premature stage and application seeking appointment of Court Commissioner has to be filed after commencement of evidence. Admittedly, in the present case, application for appointment of Court Commissioner was moved at a premature stage even before commencement of evidence.

5.

In that view of the matter, no fault can be found with the order impugned in the present petition. Writ petition being devoid of merits, is dismissed. The parties are liberty to file application for appointment of Court Commissioner after recording of the evidence commences. If such application is filed at that stage, the Trial Court shall consider it on its own merits, without being influenced by the order impugned in the present petition.

[NITIN B. SURYAWANSHI, J.] Bhagyawant Punde