gst 1 wp6983.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 6983 OF 2010. Mrs.Sindhu Suresh Chavan & Ors. .... .... ...Petitioners. V/s Arup Builders & Ors. .... .... .... ..Respondents. Mr.R.S.Apte i/by Mr.Girish Puryani, Adv. For the petitioners. Smt.Rutuja Ambekar, Adv. For the respondents. CORAM: B.R.GAVAI, J. 19th Jan., 2011. PC: By way of present petition the petitioner challenges the order dated 21.7.2010 vide which the application filed by the present petitioner under order 39 Rule 7 came to be rejected. 2. Shri Apte, learned senior counsel appearing on behalf of the petitioner submits that the application filed by the present petitioner was under Order 39 Rule 7 and the learned trial Court has misconstrued the same to be under Order 26 rule 9 of the Code of Civil Procedure. He submits that in order to find out factual position the order of inspection would have been just. He further submits that no prejudice whatsoever would have been caused to the parties if the application was allowed. 3. Smt.Ambekar, learned counsel appearing on behalf of respondent on the contrary submits that though this application is styled under Order 39 Rule 7, a gst 2 wp6983.10.sxw perusal of prayer clause would in fact reveal that in effect that it was under Order 26 Rule 9 of CPC. She therefore submits that the learned trial Court has rightly rejected the application which was in effect for collecting evidence in suport of the case of the petitioner. Learned counsel relies upon a judgment of the learned Single Judge of this Court in the case of Sanjay Namdeo Khandare V/s. Sahebrao Kachru Khandare & Ors., 2001 (2) Mh.L.J., 959 and Subal Kumar Dey V/s Purna Chandra, AIR 1989 Orissa 214. 4. A perusal of the application which has been rejected by the learned trial Court would reveal that the petitioner in effect has prayed for appointment of Commissioner for finding out who is in physical possession. The application of the petitioner for interim relief under Order 39 Rule 1 and 2 is pending before the learned trial Court. As such the application was in the nature of collecting evidence in support of the case of the plaintiff. In that view of the matter I find that the present case would be covered by the judgment of the learned Single Judge of this Court in the case of Sanjay Khandhare (supra). 5. In any case the jurisdiction exercised by the learned trial Court is a discretionary jurisdiction. Unless the discretion exercised by the trial Court is found to have been exercised with any perversity, it will not be permissible for this Court to interfere with the same while sitting in extra ordinary jurisdiction under Article 227 of the Constitution of India. No perversity whatsoever is noticed in the impugned order to warrant interference. Hence writ petition is dismissed with no order as to costs.