82.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 82 WRIT PETITION NO. 1352 OF 2017 Rajendra Mahadeo Kadam VERSUS Khandu Baba Kolekar And Others ….. Mr. Sanjay Gaikwad h/f Mr. Gaware Niteen V., Advocate for the Petitioner Mr. P. B. Shirsath, Advocate for Respondent No.1 ….. CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 24.03.2026 PER COURT : 1. Heard the learned counsel for the respective parties. 2. The petitioner assails the order dated 21.12.2016 passed below Exhibit–86 by the Joint Civil Judge, Senior Division, Shrigonda in RCS No.116/2007, whereby the Trial Court allowed the application filed by respondent no.1 / original plaintiff permitting him to deposit the court commissioner fee. Alternatively, the petitioner also challenges the order dated 23.06.2016 passed below Exhibit–80, which was filed by the petitioner himself for appointment of a Court Commissioner, which was allowed. 3. The learned counsel for the petitioner submits that the suit is for demarcation of boundaries. Therefore, the Trial Court ought not to have allowed the application seeking measurement of the suit land and ascertainment of the actual position of the property. He further submits 1 2026:BHC-AUG:13600 82.odt that the petitioner filed an application below Exhibit–80 for appointment of a Court Commissioner to ascertain the geographical condition, but contrary to that, the Trial Court allowed the application, thereby directing measurement of suit property and pointing position of canal. 4. The learned counsel for respondent no.1 submits that the order was passed below application Exhibit–80, which was filed by the petitioner. However, after the passing of the order, the petitioner failed to deposit the court commission fee. Therefore, respondent no.1 had no option but to deposit court commissioner fee himself, which came to be allowed. 5. Though the petitioner has challenged the order below Exhibit– 86, he is unable to point out any error committed by the Trial Court while passing the said order. The record reveals that, after the order passed below Exhibit–80, the petitioner did not deposit the court commission fee, and therefore respondent no.1 / plaintiff filed an application for depositing court commissioner fee, which came to be allowed. 6. Having heard the learned counsel for the respective parties and after going through the application filed by the petitioner below Exhibit–80, it reveals that the petitioner himself has challenged the said order, contending that the Trial Court ought to have appointed the Court Commissioner only to verify the geographical condition. Therefore, he submits that the Trial Court ought not to have passed such an order dehors the prayers made by the petitioner. I have gone 2 82.odt through the copy of the plaint, and since the suit is for fixation of boundaries, the Court Commissioner cannot be appointed by way of such an interim order as it would amount to collection of evidence. Resultantly, I am inclined to allow the writ petition by setting aside the order passed below Exhibit–80. Accordingly, the order below Exhibit– 80 is set aside, and the consequential order whereby the Trial Court directed respondent no.1 to pay the court commissioner fee is also liable to be set aside. 7. In view thereof, the writ petition is allowed. The order dated 21.12.2016 passed below Exhibit–86 and order dated 23.06.2016 passed below Exhibit–80 by the Joint Civil Judge, Senior Division, Shrigonda in RCS No.116/2007 are quashed and set aside. 8. Pending civil applications, if any, stand disposed of. [SIDDHESHWAR S. THOMBRE, J.] Sameer/March-2026 3