1 WP-3154.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3154 OF 2011 Narendra Padmakar Yewalkar & ors. : Petitioners versus Chandrakant Uddhav Niphadkar : Respondent. Mr. J S Kapre for the petitioners. Mr. P B Shah for the Respondent. CORAM : R M SAVANT, JJ. DATE : 08th November 2011 P.C. 1 The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 5/2/2011 passed by the Additional Small Causes Court, Pune in Civil Suit No.193 of 2008 by which order the Application-Exhibit-56 for appointment of Court Commissioner filed by the Petitioners herein who are the Defendants in the said Suit came to be rejected. It appears that on partition of the property in question 1/4th share of the property came to the uncle of the Petitioners through whom, according to the Petitioners, the Respondent is claiming and 3/4th share of the property came to the Petitioners. It is the case of the Petitioners that though the Respondent has purchased 1/4th share through their uncle, the Respondent is also paying rent in respect of 90 sq.ft, which is a part of the same property and therefore to identify 3/4th share of the Petitioners, 1/4th share of the Respondent, and the part of the property wherein the Respondent is a tenant, that a Court Commissioner is required to be appointed. 2 WP-3154.11.sxw 2 The said Application-Exhibit 56 filed by the Petitioners came to be rejected inter alia on the ground that the Defendants would have to prove their case by evidence, and that the Court Commissioner cannot be appointed for collection of evidence. In my view, the reasoning given by the trial Court for rejecting the Application-Exhibit-56, as can be seen from the impugned order, is unexceptional, and the said order does not warrant any interdiction at the hands of this Court in its writ jurisdiction under Article 227 of the Constitution of India. 3 The learned counsel for the Petitioners placed reliance on the judgment of the Apex Court reported in (2008) 8 SCC 671 in the matter of Haryana Waqf Board v/s. Shanti Sarup and ors. , and the judgment of this Court reported in 2005(6) Bom.C.R. 267 in the matter of Kashinath Ramkrishna Chopade v/s. Purushottam Tulshiram Tekade and ors. In so far as judgment of the Apex Court is concerned, the factual position was that encroachment was alleged wherein the Apex Court in the said factual background held that a Court Commissioner need be appointed. 4 In so far as judgment of a learned Single Judge of this Court is concerned, in the said case there was a boundary dispute between the parties. In the said factual background, the learned Single Judge was of the view that a Court Commissioner need be appointed. Such is not the case in the present 3 WP-3154.11.sxw Petition. In the present matter the Suit is filed for declaration, perpetual mandatory injunction wherein the Petitioners-Original Defendants would have to prove their case by cogent evidence. The trial Court has therefore rightly observed that appointment of Court Commissioner in the facts and circumstances of the present case would amount to collection of evidence through Court. 5 In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]