1 wp 2416.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2416 OF 2011 Sanjay Bhaurao Yelikar .. Petitioner Versus Laxmiraman Mahantappa Wadkar .. Respondent Shri P. K. Lakhotiya, Advocate for the Petitioner. Shri B. L. Sagar Killarikar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. PER COURT : . The petitioner is the original plaintiff who had filed a suit for recovery. The defendant along with written statement also filed counter claim claiming recovery from the plaintiff on the ground that the extra work has been done. The defendant filed an application for appointment of Commissioner purportedly U/Sec. 75 read with Order 26 Rule 9 of the Code of Civil Procedure. Vide the said application the defendant sought appointment of an architect as a Court Commissioner, so that he would submit a report about the extra work that has been carried 2 wp 2416.11 out. The said application is allowed by the Trial Court. The said order is assailed in the present writ petition. 2. Shri Lakhotiya, the learned counsel for the petitioner submits that it is settled position of law that Commissioner cannot be appointed to collect the evidence. It is for the defendant to prove his case. In the counter claim by appointment of Commissioner, the defendant is trying to collect the evidence which is not permissible. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Pandurang Chandak & another Vs. Sandip Pensalwar and another reported in 2009(2) Mh.L.J. 487 and the judgment in a case of Sanjay Khandare Vs. Sahebrao Khandare and others reported in 2001(2) Mh.L.J. 959. So also a judgment of the learned Single Judge of Rajasthan High Court in a case of Smt. Vimla Sharma Vs. Registrar Co-operative Societies reported in 1998(1) Civil L.J. 316. 3. To appoint Commissioner or not is a discretion of the Court. The discretion has to be exercised as per the settled 3 wp 2416.11 judicial norms and legal principles. No doubt, a Commissioner cannot be appointed simply to collect evidence. But each and every appointment of Commissioner cannot be depicted as an appointment for collecting evidence. In the present case, the nature of dispute revolves around quantum of the work carried out. It is the architect who would be in a position to dilate on the exact nature and quantum of work carried out. In this case, the appointment of Commissioner that is an architect would be an appointment of an expert person. The expert is appointed for assistance of the Court in arriving at the just conclusion. The judgments in case of Pandurang Chandak and Sanjay Khandare referred supra would not be of any avail to the petitioner in as much as, in the said case the Commissioner was to be appointed to inspect the spot being the suit field and to submit report regarding actual possession. 4. In the light of above no case for interference is made out, as such, the writ petition is dismissed, however, with no costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11