1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5762 OF 2009 Mohamed Usman Mansoorli and another Petitioners versus M/s.K.L.Malhotra Respondent Mr.H.T.Pawar for petitioners. Mr.Sandip Parikh and Shambhuraje Deshmukh i/by India Law Alliance for respondent. CORAM : A.S.OKA, J. DATE : 18th January 2010 PC :- 1. Heard learned counsel for the parties. The petitioners are the original plaintiffs and respondent is the original defendant. A suit for eviction has been filed by the petitioners against the respondent. In the said suit for eviction, an order of temporary injunction was granted against the respondent restraining the respondent from carrying out any changes in the suit premises. An application was made by the petitioners in November 2000 essentially for initiating an action against the respondent for committing breach of order of temporary injunction. In the said application, a prayer was made for appointment of Court Commissioner for visiting the suit premises and 2 for causing photographs to be taken. By the impugned order, out of the three prayers in the application (Interim Notice No.1765 of 2005) only the prayer for appointment of Court Commissioner has been rejected and the main application has been kept pending. The learned Trial Judge observed that permitting appointment of Court Commissioner will amount to collection of evidence. 2. After having heard the learned counsel for the parties I find that the approach of the learned Judge is completely erroneous. If there is prima facie material on record to show that the respondent has committed breach of order of temporary injunction, surely the Court is not powerless to appoint Court Commissioner. The Court can always exercise power under Rule 7 of Order XXXIX of the Code of Civil Procedure, 1908 for appointing the Court Commissioner. By keeping the main application pending, the learned Trial Judge could not have taken up only the prayer (c) for appointment of Court Commissioner therein for hearing. The request for appointment of Court Commissioner will have to be considered by the Trial Court when substantive prayers in the said Interim Notice No.1765 of 2000 are considered by the Court on merits. At that stage the Court can consider whether a case is made out for appointment of Court Commissioner. In the circumstances, the impugned order needs to be set aside. 3 3. Hence, the petition is disposed of by passing following order :- (A) The impugned order dated 15th July 2008 is quashed and set aside and it is directed that prayer (c) in Interim Notice No.1765 of 2000 will be considered by the Trial Court when the interim notice is taken up for hearing; (B) All contentions of the parties on merits of the said interim notice are expressly kept open; (C) There will be no orders as to costs. (A.S.OKA, J.)