1 W.P. 9567.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9567 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders ................................ CORAM : S.V.GANGAPURWALA, J. DATE : 14/12/2011. Mr. M.R.Sonwane, Advocate for the petitioner. ..................... PER COURT : 1. The present petitioner is the original plaintiff, who had filed Suit for declaration in respect of the sale deed and injunction. Along with the Suit, the petitioner had also filed an application for temporary injunction. The said application came to be rejected. Aggrieved thereby, the petitioner has filed Appeal before the District Court. During the pendency of the Appeal, the petitioner filed an application for appointment of Court Commissioner to inspect the suit site and to bring on record the factual situation as existing on the suit site. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 2 W.P. 9567.2011 2. Mr. Sonwane, the learned counsel for the petitioner submits that the lower appellate Court has rejected the application for the appointment of Court Commissioner on wrong premise. Order XXVI Rule 9 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] empowers the Court to appoint the Commissioner in such cases. The factual position is sought to be brought on record by appointment of Court Commissioner. It is the Court Commissioner, who would be in a better position to bring on record all the factual matrix as is contended. It would assist the Court in arriving at the just conclusion. 3. To appoint the Commissioner or not is the discretion of the Court as envisaged in Section 75 read with Order XXVI Rule 9 of the Code. The Court while passing the impugned order, has observed that it is not necessary to appoint the Commissioner for the purpose it is sought. Certain photographs are already produced on record. The Court Commissioner can not state in his report as to who is in possession of the suit land. The Court has observed that it is not at all required and has rejected the application. The discretion is exercised by the learned Judge in a plausible manner. As such, no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. 3 W.P. 9567.2011 4. The Writ Petition as such is dismissed. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9567.2011