1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3822 OF 2009 Mr Roshanlal Jain, .. Petitioner Vs Mr Vinayak S Bhagwat & ors .. Respondents Mr. P.S.Dani, Advocate for the petitioner. Mr. Yashodhan Divekar i/b M/s Divekar & Wadia for respondent no.1. CORAM : D.B.BHOSALE, J. DATE : 12/08/2009 PC: 1. Heard learned counsel for the parties. 2. This petition is directed against the order dated 16.2.2009 passed by the trial Court, appointing Court Commissioner at the instance of the petitioner for visiting the premises of the respondent-landlord and to take measurement of each room on the third floor and terrace and to take photographs of the rooms. In the course of arguments before the trial Court, learned counsel for the respondent-landlord had submitted that if the prayer for appointing Court Commissioner is granted, the Court Commissioner may also be directed to visit a flat of the petitioner, which is allegedly acquired and occupied by him and T 2 his family members. The court below, for the reasons recorded in the order and more particularly in paragraphs 11 and 12 thereof, allowed the application filed by the petitioner and while granting his prayer in the application also directed to visit flat no.301, Paras Apartment, Prathna Samaj Road, Vile Parle, Mumbai, allegedly acquired by the petitioner and his family members to take measurement of each room and terrace and to take photographs thereof. Mr Dani, learned counsel for the petitioner, challenged this part of the order by which direction has been given to visit the flat in Paras Apartments on two grounds. Firstly, the said flat stands in the name of the petitioner’s son and that has nothing to do with the issues involved in the suit and, secondly, on the ground that such order ought not to have been passed in the absence of his son. He submitted that the petitioner’s son is not a party to the proceedings and, therefore, the order cannot be sustained in law. I have perused the impugned order and, in my opinion, for the reasons recorded therein and more particularly in paragraphs 9 to 12, the discretionary order granted by the trial Court deserves no interference. Whether the flat in Paras Apartment is owned by the petitioner need not be considered at this stage since admittedly it is in possession of his son and other members of the family. The court below in paragraphs 9 to 3 12 has recorded the reasons why he thought it necessary to issue the impugned direction. Insofar as the second contention is concerned, similar question was involved in Madhukar R Javle Vs Baskar Ramnath Shibad, AIR 1996 Bombay 96. In this case, the question whether the lower court was right in granting inspection of the premises which are not the subject matter of the suit and are in possession of third parties was under consideration of this court. While dealing with the question, this Court observed that the grievance, if any, has to be made by the occupants of the flat and not by the landlord therein. It was further observed that in view of the provisions of Order 8 Rule 18, Order 26 Rule 9 of CPC it is not possible to accept the contention that in exercise of the powers under these provisions, the Court is precluded from directing inspection of some other property should such inspection is necessary in the interest of justice. Keeping that in view and considering overall facts and circumstances of the case, and considering that the order appointing the Court Commissioner under Order 26 Rule 9 is a judicial discretionary order, I see no reason to exercise writ jurisdiction of this court to disturb the impugned direction. The writ petition, therefore, fails and dismissed as such. (D. B. Bhosale, J.) 4