1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5847 OF 2009 Pankaj Murlidhar Kabra. Petitioner. V E R S U S Shivlal s/o Shankar Chinchole and others. Respondents. Shri Vinod P. Patil, Advocate for the petitioner. Shri S.S. Patil Advocate for the respondent 1 and 2. Respondent No.3 served. CORAM : B. R. GAVAI, J : DATE : 25TH NOVEMBER, 2009. PER COURT :- 1. By way of present petition, the petitioner challenges the order dated 21.08.2009 passed by the Learned Civil Judge (J.D.), Erandol, Jalgaon, thereby rejecting the application filed by the present petitioner for appointment of court commissioner. The petitioner has filed a suit for injunction and possession claiming therein that respondent who is adjacent plot holder has encroached upon the land belonging to the petitioner. In the said suit an application for temporary injunction is also filed. During the pendency of the suit, another application under Order 26 Rule 9 of the Civil Procedure Code, came to be filed by the present petitioner for appointment 2 of Taluka Inspector of Land Records as court commissioner. Same is rejected. Hence present petition. 2. Shri V.P. Patil, the learned counsel appearing for the petitioner submits that since respondent-defendants were disputing the correctness of the map submitted by the petitioner, the learned trial court ought to have allowed the application so as to find out factual position. He relies on the judgment of learned Single Judge of this Court in the case of Girish Vasantrao Bhoyar and another Vs. Nimbaji Warluji Bambal reported in 2009 (4) ALL MR 761 and Apex Court in the case of Shreepat v/s Rajendra Prasad reported in 2000 STPL (LE) 28143 SC . 3. Shri Swapnil Patil, the learned counsel appearing on behalf of respondents No.1 and 2, supports the impugned order. 4. The jurisdiction under Order 26 rule 9 of the Civil Procedure Code regarding appointment of court commissioner is discretionary. Unless it is found that discretion has been exercised with perversity, it is not permissible for this Court to warrant interfere in its extra ordinary jurisdiction under article 227 of the Constitution of India. 5. The learned trial court has found that stage of the proceeding was for consideration an application for temporary injunction. The learned trial court has found that for considering the said application, it was for the 3 plaintiff to establish primafacie case and that Court commissioner cannot be appointed so as to collect evidence in support of the case of the plaintiff. 6. In so far as judgment of the Learned Single Judge of this Court in the Case of Girish v/s Nimbaji (cited supra) is concerned, in the said case Ld. trial Judge had exercised discretion in favour of appointment of Court Commissioner. This court sitting in writ jurisdiction found that there is no judicial error committed by the learned trial court and thus dismissed the writ petition. In so far as judgment of the Apex Court referred to above is concerned, Apex Court has found that there is serious dispute regarding identity of the property and as such held that unless the identity of the property was established, the decree could not have been passed. Such is not the case here. There is no dispute regarding the identity of the property. 7. In that view of the matter, no case is made out for interference. Hence, rejected. ( B. R. GAVAI, J. ) ..... aaa/5847.09