SRJ 1 wp-2603-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2603 OF 2010 Shri Pralhad S. Ghodake .. Petitioner V/s. Dattatray G. Aapake & Others. .. Respondents. Mr. N.V.Bandiwadekar, for Petitioner. CORAM :A.S.OKA,J. DATE :7th APRIL,2010 P.C.:- 1. Heard learned Counsel appearing for the Petitioner. The Petitioner is the Defendant and the Respondents are the Plaintiff. A Court Commissioner was appointed under Rule 9 Order XXVI of the Code of Civil Procedure, 1908. The Court Commissioner was summoned at instance of the Respondents for giving evidence. By the impugned order, the Respondents have been permitted to ask questioned to the Court Commissioner in the nature of cross examination. 2. The learned Counsel appearing for the Petitioner submitted that merely because of Court Commissioner answered certain questions against the Respondents, the Court cannot exercise the power of permitting the Respondents to put the questions to the Court Commissioner SRJ 2 wp-2603-10.sxw in the nature of cross examination. He submitted that the Court Commissioner was summoned at the instance of the Respondents/Plaintiffs and, therefore, now the said Respondents cannot be permitted to cross examine the witness. 3. After having considered the submissions, I am of the view that this is not a case where interference can be made with the discretionary order passed by the trial Court in exercise of power under section 154 of the Indian Evidence Act, 1872. Under Rule 10 of Order XXVI of the said Code, at the instance of the parties, the Court Commissioner can be always examined on oath. In the impugned order, it is noted that the Respondents/ Plaintiffs have raised an objection to the report of the Court Commissioner. No fault can be found with the order of the Trial Court which permits the Respondents to put the questions to the Court Commissioner in the nature of cross examination. There is no merit in the Petition. Hence, the Writ Petition is rejected. (A.S.OKA,J.)