1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3069 OF 2010 Vijay D. Deshpande .. Petitioner V/s Dattatraya Shankar Pradhan & Anr. .. Respondents Mr. S.P. Thorat for the petitioner. Mr. Prashant Karande for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 16TH JUNE 2010 P.C. : 1. Rule, returnable forthwith. 2. Mr. Karande waives service for respondent no.1 landlord. 3. Respondent no.2 is the brother of the petitioner and co- defendant in the suit. He is a formal party to the writ petition. Service against the respondent no.2 is dispensed with. 4. Heard learned counsel for the parties. 5. By this petition, the petitioner challenges the judgment and order dated 24th February 2010 passed by the appellate 2 Bench of the Small Causes Court, Mumbai rejecting the application of the petitioner for appointment of a Court Commissioner for site inspection. 6. Respondent no.1 is the owner and landlord of the suit premises. Father of the petitioner and respondent no.2 was a tenant and on his death, the respondent no.1 filed a suit for possession against the petitioner and respondent no.2 being the heirs of the original tenant for possession, inter alia, on the ground of bonafide requirement and non-user of the premises by the tenant. The trial court passed a decree on both the grounds. An appeal was carried by the petitioner by joining his brother respondent no.2 as a party respondent in the appeal. In the appeal, he made an application for appointment of a Court Commissioner for inspection of the premises in possession of the respondent no.1 landlord alleging that the premises in possession of the respondent no. 1 were sufficient to meet his needs and the respondent no.1 did not require the suit premises. The order rejecting that application is impugned in this petition. 7. The Court Commissioner can be appointed by a Court for local inspection under Order 26 Rule 9 of the Code of Civil 3 Procedure (for short “the Code”). Rule 10 of Order 26 prescribes the procedure to be followed by the Court Commissioner. Sub-Rule (2) of Rule 10 of Order 26 of the Code provides that the report of the Court Commissioner shall be evidence in the suit. 8. In view of the fact that the report of the Court Commissioner is to be regarded as a suit, appointment of the Court Commissioner and his report, which is to be regarded in evidence, can be allowed in appeal only if it satisfies the rigours of Order 47 Rule 27 of the Code regarding production of additional evidence in appeal. In the application for appointment of Court Commissioner made in appeal by the petitioner, no ground is made out under Order 47 Rule 27 of the Code for permission to adduce additional evidence. The application was therefore liable to be rejected on this ground alone. 9. Even otherwise, I am satisfied that there is no error committed by the appellate court in rejecting the application. It is settled principle of law that the Court Commissioner cannot be appointed to collect evidence. What the petitioner wants to do is to collect through the Court Commissioner the 4 evidence of the premises in possession of the respondent no. 1-landlord. He could have and ought to have adduced evidence of the premises in possession of the respondent no.1 on his own, and if necessary by examining witnesses. 10. For these reasons, there is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)