1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7215 OF 2009 Vishwanath Ramchandra Waghmale and others Petitioners versus Mehioob Gulab Bagwan and others Respondents Mr.Vijay Killedar i/by Nitin Jamdar for petitioners. V.S.Talkute for respondents 1 to 5. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC : 1. Heard learned counsel for the petitioners and learned counsel for first to fifth respondents. Respondent no.6 is duly served. Respondent no.7 is one of the plaintiffs. 2. An application was made by the petitioners for appointing Court Commissioner under Rule 9 of Order XXVI of the Code of Civil Procedure, 1908. The learned Trial Judge by order dated 8th June 2009 rejected the said application. My attention is invited to the reply filed by first to fifth respondents to the application for appointment of Court Commissioner. The first contention in the reply is that the said respondents have already caused survey to be carried out. However, it is further stated that if the Commissioner is to be appointed, a Survey Officer be appointed and an 2 advocate cannot be appointed as a Court Commissioner. In paragraph 2 of the reply, the respondent nos.1 to 5 specifically stated that if the petitioners/ plaintiffs desire that Commissioner should be appointed, the said respondents have no objection if the petitioners get the property surveyed at their own costs. 3. After having heard learned counsel for the parties I find that there was no serious objection raised by the first to fifth respondents for appointing the Court Commissioner. However, it was rightly submitted that considering the controversy involved, a survey officer under the Maharashtra Land Revenue Code, 1966 ought to have been appointed as the Court Commissioner. It is obvious that the commission work will have to be carried out at the cost of the petitioners. 4. Hence, I pass following order :- A) The impugned order dated 8th June 2009 is quashed and set aside; B) The application made by the petitioners at Exhibit-24 is allowed; C) The learned Trial Judge is directed to appoint the Taluka Inspector of Land Records as the Court Commissioner. The costs and charges of the Court Commissioner shall be borne by the petitioners; D) On production of an authenticated copy of this order, the Trial Court 3 will issue commission to the concerned Taluka Inspector of Land Records; E) All the contentions of the parties on the suit are kept open; F) The petition is allowed in above terms. (A.S.OKA, J.)