(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3050 OF 2011 Pandurang s/o. Datta Kasle, Age : 70 years, Occupation : Agriculture, R/o. Ujna, Taluka : Ahmedpur, District : Latur, .. Petitioners and 2 others. (Original defendants) versus Madhukar s/o. Sadashiv Kadam, Age : 51 years, Occupation : Agriculture, R/o. Ganga Hipparga, Taluka : Ahmedpur, District : Latur, .. Respondents and another. (Original plaintiffs) ....................... Mr. A.V. Patil, Advocate, holding for Mr. V.D. Gunale, Advocate, for the petitioners. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 21ST APRIL 2011 (2) COURT'S ORDER : 1. Heard Adv. Mr. A.V. Patil, holding for Adv. Mr. V.D. Gunale, for the petitioners / original defendants. 2. The petitioners have challenged the order dated 3-3-2011, passed by the learned Joint Civil Judge (Junior Division), Ahmedpur, below Exhibit 64 in Regular Civil Suit No. 165/2007, thereby rejecting the application filed by the petitioners for appointment of court commissioner. 3. The petitioners / original defendants contend that when situation on spot has been disputed by respondents / plaintiffs, after completion of evidence, application under Order XXVI Rule 9 of CPC was moved, only to bring on record correct position through court commissioner so as to assist the court in delivering justice. The court could not have treated that application as an application for collection of evidence. 4. The trial court has considered all relevant aspects and noticed that situation prevailing on spot could have been brought on record through evidence by petitioners / defendants. The trial court has then found that in this position, the real question was whether situation on spot could have been brought on record (3) only through court commissioner. After considering case law cited, trial court found appointment of court commissioner unnecessary and rejected the prayer. There is no jurisdictional error or perversity. 5. With liberty to the petitioner, to challenge the impugned order, after the suit is finally decided, if occasion arises therefor, present petition is disposed of. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp3050