1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8997 OF 2009 Hari Govind Dhoke & Another. .. Petitioners Vs Naresh Sahadev Sarang & Ors. .. Respondents -- Shri A.P. Ranade for the Petitioners. -- CORAM : A.S. OKA, J DATED : 5TH JANUARY, 2010. P.C. Heard learned counsel appearing for the Petitioners (who are the original Plaintiffs ) in support of this Writ Petition under Article 227 of the Constitution of India. On the Application made by the Petitioners, the Trial Court appointed Taluka Inspector of Land Records as the Court Commissioner. The Court Commissioner filed his report at Exhibit-68. An objection was raised to the said report by the Petitioners on various grounds. It was contended that the Petitioners be permitted to cross-examine the Court Commissioner. Thereafter, an application was made by the Petitioners at Exhibit- 110 praying for re-appointment of Taluka Inspector of Land Records as the Court Commissioner on the ground that earlier commission work has not been carried out properly. By the impugned order dated 4th March, 2009, the said application has been rejected. 2. Learned counsel appearing for the Petitioners submitted that the 2 trial Court has not yet dealt with the objections raised by the Petitioners to the report of the Court Commissioner at Exhibit-68. He submitted that without considering the said objections, while passing the impugned order, the trial Court has recorded a finding on the Commissioner's Report at Exhibit - 68. He submitted that the Taluka Inspector of Land Records himself has not carried out the commission work but he had delegated the commission work to another officer. He submitted that the entire procedure followed by the Court Commissioner was illegal and therefore, a direction is required to be issued to Taluka Inspector of Land Records to do commission work again. 3. I have considered the submissions. The objections raised to the Commissioner's Report at Exhibit-68 by the Petitioners have not been considered by the trial Court. The Petitioners have applied for cross- examining the Court Commissioner by filing the objections. The Petitioners have a right to raise objection to the Commissioner's Report and have a right to apply for examining the Court Commissioner on oath. Admittedly, the Court Commissioner has not been examined. The trial Court could have considered the case of the Petitioners under Sub-rule (3) of Rule 10 of Order XXVI of the Code of Civil Procedure, 1908. Under Sub-rule (3), if the facts of a case warrant, the Court can issue direction to the Court Commissioner to carry out commission work. Application made by the Petitioners at Exhibit - 110 was premature. Though, no interference is called for in writ jurisdiction, it is clarified that notwithstanding the impugned order and the observations made therein, the trial Court will have to decide the objections raised by the Petitioners to the Court Commissioner's Report and will have to consider the 3 prayer of the Petitioners for examining the Court Commissioner on oath. After considering the objections of the Petitioners and after considering the prayer of the Petitioners for examining the Court Commissioner on oath, the trial Court will have to pass an order in terms of Sub-rule (3) of Rule 10 of Order XXVI of the Code. It is obvious notwithstanding the impugned order the trial Court will have to follow the provisions of Sub-rule (2) and Sub-rule (3) of Rule 10 of Order XXVI of the said Code. 4. Subject to the observations made above, no case for interference is made out. Writ Petition is rejected by keeping the objections raised by the Petitioners to the Court Commissioner's report expressly open. JUDGE