jpc 1 wp10506-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 10506 OF 2009 Vasant Sadashiv Morbale and others ... Petitioners Versus Dattu Aappa Kumbhar and others ... Respondents Mr. Vijay Killedar, for the petitioners CORAM: R. M. SAVANT, J. DATED : 8th December, 2011 P.C. : 1. In the above petition, notice came to be issued on 4th January, 2011 indicating that the above Writ Petition would be taken up for final disposal at the stage of admission. In spite of service of notice, no appearance is put up on behalf of the respondents. Hence, in terms of the said notice, the petition is taken up for final hearing. Hence, Rule, made returnable forthwith and heard. 2. The order impugned in the above petition, filed under Article 227 of the Constitution of India, is the one dated 3rd August, 2009 by which order, the Application Exh. 32 filed by the Defendants i.e. the Petitioners herein for appointment of Cadestral Surveyor for inspection of suit house is rejected. The said application, as can be seen from the jpc 2 wp10506-09.sxw impugned order, has been rejected on the ground that the object of the application appears to be for collection of evidence. 3. It is required to be noted that there is a dispute between the plaintiffs and the defendants as regards boundary of the suit house. The said suit i.e. Regular Civil Suit No. 232 of 2003 has been filed for declaration and injunction as prayed in the plaint. It appears that the plaintiffs had no objection for the Court Commissioner being appointed, but their only condition was that the commission fees should be paid by the defendants. The trial Court, as indicated above has rejected the said application on the ground that since the issues have been framed on the basis of the pleadings, it would be for the parties to adduce evidence in support of their respective cases and the appointment of the Court Commissioner was not warranted. 4. It is trite, in so far as the boundary disputes are concerned and where an issue arises about encroachment, the Court Commissioner can be appointed so as to report in respect of the situation on site. In the instant case, admittedly the dispute is as regards the boundaries of the properties of the plaintiffs and the defendants and since the plaintiffs have no objection to the Court Commissioner being appointed and that as indicated above the plaintiffs were also of the view that the report jpc 3 wp10506-09.sxw of the Court Commissioner would aid the Court in adjudicating upon the issues raised in the suit, in my view the trial court has erred in rejecting the said application Exh. 32. In that view of the matter, the impugned order dated 3rd August, 2009 requires to be quashed and set aside and is accordingly quashed and set aside. Resultantly, the application Exh. 32 filed by the defendants for appointment of the Court Commissioner is granted. The Cadestral Surveyor from the City Survey office is appointed as Court Commissioner, who will submit his survey report to the Court. The fees for the said Commission would be borne by the defendants i.e. the petitioners herein. 5. Rule is accordingly made absolute in the aforesaid terms. (R. M. SAVANT, J.)