1 wp8230.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 8230 OF 2011 Dr. Satish S/o Gurunathrao Birajdar PETITIONER -VERSUS- Mahendrakumar S/o Ramgopal Rathi and another RESPONDENTS ...... Ms. Ajnali Dube, advocate for the petitioner ...... CORAM : S.V. GANGAPURWALA, J. DATE : 20th October, 2011. PER COURT : 1. The petitioner is the original plaintiff, who has filed suit for injunction restraining the defendants from obstructing the plaintiff from enjoyment of right of light, air and access to the suit premises. During pendency of the suit, plaintiff filed application for appointment of Court Commissioner under Section 75 r.w. Order 26 Rule 9 of the Civil Procedure Code. Trial Court rejected the said application. Aggrieved thereby, present Petition is filed. 2. Learned counsel for petitioner submits that the Court Commissioner can be appointed as per Section 75, Order 26 Rule 2 wp8230.11 9 to elucidate the matter in controversy. Learned counsel contends that there are some aspects which can be brought on record only by physical verification of the suit site and which cannot be proved by oral evidence of either of the parties. According to learned counsel, no prejudice would be caused to the defendants also, if the Court Commissioner is appointed. On the contrary, it would assist the Court in arriving at just conclusion. 3. To appoint the Court Commissioner or not under Section 75 r/w Order 26 Rule 9 of the Civil Procedure Code is discretion of the Court. It is for the Court to come to the conclusion whether the appointment of the Court Commissioner is necessary to assist the Court and elucidate the matter in controversy. The Court while passing the order has observed that the plaintiff can prove the factual matrix by adducing the evidence documentary or oral and there is no necessity to appoint the Court Commissioner. The said reasoning cannot be faulted with. 4. Writ Petition being sans merits, stands dismissed. However, there is no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 8230.11