The High Court has set aside an order passed by the Trial Court that allowed the appointment of a Court Commissioner to survey, measure, and map the suit property early in the proceedings. The case involves a property dispute where the plaintiffs sought a mandatory injunction and removal of encroachments by the defendants. The Court held that appointing a Court Commissioner before the plaintiffs have proven their case through documentary evidence would be premature and tantamount to gathering evidence on their behalf.

1. Background of the Case:

The plaintiffs (Respondent Nos. 1 to 4) filed a suit in 2021 seeking mandatory injunction and removal of encroachments on their property. They filed an application under Exh. 75 for the appointment of a Court Commissioner to survey the property, which was allowed by the Trial Court. The present writ petition challenges this order.

2. Precursor Suit and Previous Application:

The plaintiffs had previously filed a similar suit in 2015, which was eventually withdrawn with liberty to file a fresh suit. In that earlier case, the plaintiffs' application for the appointment of a Court Commissioner was rejected.

3. Court’s Analysis and Observations:

The Court observed that the plaintiffs must first prove their entitlement to the suit property through documentary evidence before seeking the appointment of a Court Commissioner. Allowing such an application at the outset would amount to collecting evidence on behalf of the plaintiffs. However, the Court clarified that after the plaintiffs and defendants have completed their evidence, the Trial Court could, at its discretion, appoint a Court Commissioner if there remains a need to identify the suit property and the extent of encroachment.

4. Examination of Legal Precedents:

Mr. Jadhav, the advocate for the respondents, cited several precedents to argue that the appointment of a Court Commissioner could be justified even at an interim stage. However, the Court distinguished the facts of the present case from those precedents, emphasizing that the proper stage for such an appointment is after the evidence has been led by both parties.

5. Final Decision:

The Court quashed the impugned order of the Trial Court and directed that the suit should proceed based on its merits, without being influenced by any prior orders. The discretion to appoint a Court Commissioner after the evidence stage was left to the Trial Court.

6. Conclusion:

The writ petition was allowed, and all contentions of both parties were expressly kept open. The case will now proceed on its own merits, with the possibility of appointing a Court Commissioner only after the evidence from both sides has been presented.