Sandhya Mahendra Agrawal v. Arun Vasant Wani

4959.16wp (1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.4659 OF 2016 Sandhya Mahendra Agrawal, Age: 43 years, Occ: Household, R/o. Krushnapuri, Pachora, Taluka Pachora, Dist. Jalgaon.

..PETITIONER

VERSUS

Arun Vasant Wani, Age: 53 years, Occ: Business, R/o. Krushnaji Nagar, Near Rest House, Pachora, Taluka Pachora, Dist. Jalgaon.` ..RESPONDENT Mr P.S. Shendurnikar, Advocate for petitioner; Mr R.P. Dhase, Advocate for respondent CORAM : NITIN W. SAMBRE, J.

DATE : 27th SEPTEMBER, 2017 ORAL ORDER :

It is not in dispute that this Court, while deciding Writ Petition No. 8877 of 2013 on 17th January, 2014 while considering the provisions of Section 75 and Order 26 Rule 9 of the Code of Civil Procedure, has observed that the Court Commissioner cannot be appointed at the stage of deciding the application at Exhibit-5 for

4959.16wp (2) injunction.

2.

Though learned Counsel for the respondent has tried to impress upon the Court that in the peculiar facts of the present case, the appointment order of the Court Commissioner was justified. However, this Court cannot lost sight of the fact that such order, at this stage, cannot be permitted to govern the proceedings between the parties, particularly for collection of evidence.

3.

In view of above, the order impugned, in my opinion, is contrary to the scheme of Section 75 and Order 26 Rule 9 of the Code of Civil Procedure. As such, the impugned order dated 10th March, 2016 is hereby quashed and set aside. The application at Exhibit-18 in Regular Civil Suit No.113 of 2015 is hereby rejected, however, the respondent is not precluded from taking out such proceedings at appropriate stage in the suit.

( NITIN W. SAMBRE, J.) Tupe