*1* 901.wp.1410.2011.sxw skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1410 OF 2011 Shree Bal Developers & Anr. ..Petitioners -Versus- Vilas Shankar Shelar & Ors. ..Respondents .......... Mr.V.B.Naik i/by Sukand R. Kulkarni for the Petitioners. None for the Respondents. .......... CORAM : B.R. GAVAI, J. DATE : 21ST FEBRUARY, 2011. P.C. 1 By way of the present petition, the petitioners challenges the order dated 27th January 2011 passed by the learned 7th Joint Civil Judge, Junior Division, Pune below Exh.237 in Regular Civil Suit No.892 of 2004 vide which an application filed by the present petitioners for appointment of the Court Commissioner came to be rejected. 2 Respondent Nos. 1 to 4 filed a suit against the present petitioners contending that the commencement certificate granted in favour of the petitioners in respect of survey No.58/3 is illegal and consequently for cancellation of the said commencement certificate issued by the *2* 901.wp.1410.2011.sxw defendant-Corporation. The said plaintiffs/petitioners have also prayed for relief of injunction restraining the present petitioners from continuing with the construction and also for a mandatory injunction demolishing entire construction made by the petitioners. 3 It is the contention of the petitioners that the petitioners have carried out the development in survey no.58/3. It is the further contention of the petitioners that the property in question where the development is carried out by the petitioners, is having more than one accesses. It is further submitted on behalf of the petitioners that the petitioners have annexed two ariel photographs of the suit property which would show that there are more than two accesses to the property on which the development is carried out. Submitting that since the plaintiffs were giving evading answers, so as to bring on record the factual position regarding the existence of the second access, it was necessary to appoint a Court Commissioner, an application came to be filed below Exh.237. In the said application, it was submitted that for bringing out the real controversy between the parties, the appointment of Court Commissioner was necessary. The said application was rejected. Hence the present petition. 4 Mr.Naik, learned counsel appearing for the petitioners submits that there is a dispute between the parties as to whether there is a second *3* 901.wp.1410.2011.sxw access to the property developed by the petitioners from survey no.59 Hissa 7 to 12. It is submitted that even the defendant-Corporation, in its written statement, has admitted this position, at more than one places. It is, therefore, submitted that if the Court Commissioner was appointed, he would have eluciated the matter in dispute and assisted the Court in arriving at just decision in the matter. It is, therefore, submitted that the discretionary jurisdiction exercised by the learned trial Court under Order 26 Rule 9 of the CPC has not been exercised in a proper manner and therefore, order impugned requires to be interfered with. 5 The jurisdiction of this Court under Article 227 of the Constitution of India is very limited. Unless it is found that the jurisdiction exercised by the trial Court is exercised in a perverse manner, it is not permissible for this Court, to sit in appeal on the jurisdiction exercised by the learned trial court. The learned Single Judge of this Court in the case of “Sanjay Namdeo Khandare Vs. Sabehrao Kachru Khandare reported in 2001 (2) Mh.L.J.959” has held that the Court Commissioner cannot be appointed so as to enable the parties to collect the evidence in their behalf. 5 If it is the case of the petitioners that there has been a way from long time from survey no.59 Hissa 7 to 12, the petitioners can very well lead evidence in that behalf. If it is the contention of the petitioners that the *4* 901.wp.1410.2011.sxw respondent-Corporation also supports this fact, then it is also permissible for the petitioners to examine the concerned officer of the Corporation to establish the said fact. 6 In that view of the matter, no perversity or illegality is noticed in the approach adopted by the learned trial Court. Hence writ petition is rejected. [ B.R. GAVAI, J. ]