ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.7424 OF 2008 PETITION NO.7424 OF 2008 PETITION NO.7424 OF 2008 Chandrakant Bhau Chougule & Ors. ...Petitioners Vs. Vilas Yeshwant Awale Beghar Seva Sanstha, Dharangutti & Ors. ...Respondents. Mr.S.S.Patwardhan for the Petitioners. None for the Respondents. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 12th November, 2008. : 12th November, 2008. : 12th November, 2008. P.C. P.C. P.C. . The Petitioners have challenged the impugned order dated 08/10/2008 whereby, the Court in the peculiar facts and circumstances, granted Respondents- Original Plaintiffs’ application who are in 323 in numbers. The suit is for declaration with regard to the Property, they are occupying. The Petitioners are owners of the said property. The Court while granting this application under Order 26 Rule 9 and Order 39 Rule 7 of the Code of Civil Procedure (for short,"C.P.C.") and appointed the Court Commissioner to inspect the suit property and to submit the report about its factual position. ( 2 ) 2. The learned Trial Judge has observed rightly as under:- . "However they have kept the ambiguity in their pleadings and in such circumstances if any of the further order passed in the present matter then it will become a vague order and so as to avoid the same and in the interest of both parties it appears proper to remove the ambiguity. If the ambiguity removed, then it will be beneficial for both parties. It will be cause any harm but it will be useful to illucidate the matter and to bring the clear picture on record. So far as the nature of the present suit is concerned, it appears that the exact location of the property in dispute can only be determined on the spot rather than on the basis of oral words and hence so as to illicidate the matter and remove the ambiguity, in view of the observation in the matter of Kisanlal Maniklal Rathi V/s. Dinkar ( 3 ) Yashwant Patil (Supra) the application appears as needs to be allowed and hence same is hereby allowed. Learned Advocate Shri S.B.Patil suggested by both parties unanimously is hereby appointed as a Court Commissioner. He is hereby directed to intimate the date of Court Commissioner to both the parties well in advance and submit his report as early as possible i.e. on or before 15/10/2008. The plaintiffs are hereby directed to deposit an amount of Rs.3000/- towards the Court Commissioner charges within time. Issue commission writ accordingly. 3. The learned counsel appearing for the Petitioners has relied on the Judgment of this Court in Sanjay Sanjay Sanjay Namdeo Namdeo Namdeo Khandare Vs. Sahebrao Kachru Khandare & Ors., Khandare Vs. Sahebrao Kachru Khandare & Ors., Khandare Vs. Sahebrao Kachru Khandare & Ors., 2001(2) 2001(2) 2001(2) Mh.L.J. 959 Mh.L.J. 959 Mh.L.J. 959 and contended that the Court Commissioner cannot be appointed for collecting evidence, as held by this Court. The said decision/ conclusion on the legal issue need no further deliberation. I am considering the facts and circumstances of the present case. The Plaintiffs who ( 4 ) are claiming to be in occupation of the land and claiming their rights in such fashion, in situation like this, it is in the interest of justice and for proper adjudication, it is necessary that the things are made clear, as early as possible, to end the dispute. In such circumstances, the observations as made by the learned Judge as recorded above, just cannot be said to be perverse or bad in law. 4. In my view also, the impugned order is within a framework of law and the record specially in the peculiar facts and circumstances of the case as recorded above. The Petition, under Article 227 of the Constitution of India, to challenge the interlocutory order, therefore, dismissed. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)