2001(1) ALL MR 653
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.M. KHANWILKAR, J.
Sanjay S/O Namdeo Khandare. Vs. Sahebrao S/O Kachru Khandare & Ors.
Civil Revision Application No. 990 of 1998
15th September, 2000
Respondent Counsel: Shri. S.U.NEMADE,Shri. S.D.PATIL
Civil P.C. (1908), S.115 and O.26, Rr.1 and 9 - Appointment of court commissioner - Cannot be appointed to collect evidence - Court appointing commissioneR and empowering him to visit suit field and report actual possession of field - It amounts to collecting evidence regarding possession - Order is contrary to well settled position and passed in excess of jurisdiction - It is good ground for interference in revisional jurisdiction. (Paras 2,3)
JUDGMENT
JUDGMENT :- Rule. By consent, Rule made returnable forthwith. Heard both sides.
2. This revision application takes exception to the order passed by the Civil Judge, Junior Division, Mahagaon, dated July 24, 1998, directing appointment of Court Commissioner. On going through the said order, it would appear that the Court has appointed the Court Commissioner empowering him to visit and inspect the spot being suit field and to submit report regarding actual possession of the suit field. This would tantamount to appointing Court Commissioner for collecting evidence regarding possession. It is well settled law that the Court Commissioner cannot be appointed for collecting evidence. The learned counsel for the respondent has supported the order by contending that in the peculiar facts and circumstances of the case, there is no reason to interfere with the order passed by the court below.
3. I am afraid, this submission cannot be accepted since the law cannot change on the basis of facts of the case, but has to be applied evenly to all situations. The learned counsel for the respondent no.1 further contends that since the order passed by the Court below is discretionary order, same ought not to be interfered with in revisional jurisdiction. I have already taken a view that the order passed is contrary to the well settled position which have the inevitable effect of Court having acted in excess of jurisdiction and that is the good ground for interference in revisional jurisdiction.
4. In the circumstances, the impugned order is set aside. Revision application is allowed.