Bombay High Court

RAJENDRA MAHADEO KADAMversusKHANDU BABA KOLEKAR AND OTHERS

Disposal: DISPOSED OFF
Bench: SIDDHESHWAR SUNDARRAO THOMBRE

Holding

The trial court’s orders appointing a Court Commissioner for measurement and directing fee payment are set aside as they exceed the scope of the petitioner’s application and amount to evidence collection.

Summary

The petitioner challenged two orders of the Joint Civil Judge, Senior Division, Shrigonda in a boundary suit: one allowing the respondent to deposit the court commissioner fee and another appointing a Court Commissioner to measure the suit land. The petitioner argued that the trial court should have limited the commissioner’s role to verifying geographical conditions and not to collect evidence, which was beyond his prayers. The respondent contended that the petitioner’s failure to deposit the fee justified the respondent’s own deposit and the appointment. The High Court examined the pleadings and held that appointing a Court Commissioner for measurement in a boundary suit constitutes evidence collection and exceeds the scope of the interim application. Consequently, the Court set aside both orders, quashed the fee direction, and disposed of any pending civil applications.

Issues considered

Whether the trial court could appoint a Court Commissioner to measure the suit land in a boundary dispute beyond the petitioner’s prayers.
Whether the order directing the respondent to deposit the court commissioner fee is valid when the petitioner failed to do so.
Whether the orders can be quashed by a writ petition on the ground of excess jurisdiction.

Subjects

boundary dispute
court commissioner
appointment of commissioner
interim order
evidence collection
writ petition
quash order
civil procedure

Judgment

2026:BHC-AUG:13600
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                     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

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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

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                                                                      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




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