1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.1438/2011 NARAYANDAS PAHUJA ..VS.. MAINABAI KHINCHI & ANOTHER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : SMT. VASANTI A. NAIK, J. D A T E : MARCH 23, 2011. Heard Shri Bhangde, the learned counsel for the petitioner. There is no error whatsoever, in the order passed by the trial court on 21.1.2011, rejecting an application filed by the petitioner for appointment of a commissioner. According to the petitioner – tenant, the plaintiff pleaded in the plaint that the petitioner/ tenant was in occupation of suit shop admeasuring 250 sq.ft., but in his cross-examination he stated that the said shop was admeasuring 400 sq.ft. and hence it was necessary to appoint the commissioner for verifying the actual dimensions of the suit property. The trial court on hearing the learned counsel for the parties, rightly rejected the application on the ground that the suit was filed by the landlord for recovery of the possession on the ground of bonafide need and the four boundaries of the suit property were clearly mentioned in 2 the plaint. The court observed and rightly so that the evidence of the plaintiff in his cross-examination could be considered only in the light of his pleadings. The trial court observed and further rightly so that the application was filed by the petitioner merely with a view to delay the suit and the same was without any basis. It appears that the application was filed by the petitioner with a view to collect the evidence and appointment of the court commissioner could not have been made for the purpose of collection of the evidence. The petitioner is still not examined in this case and he could very well tender his evidence in this regard. Even otherwise, the evidence of the respondent in his cross-examination would also be considered on the basis of his pleadings. Since this is not a fit case for appointment of the court commissioner, the trial court rightly rejected the application filed by the petitioner. The judgment reported in 2005 (4)Mh.L.J. Page 471 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. Since the petition is devoid of merits, the same is dismissed with no order as to costs. JUDGE SMP