1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4024 of 2009 (Dr. Subhash M. Chavan and another v. Manoj K. Punjabi and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri N.A. Padhye, Advocate, holding for Shri A.S. Jaiswal, Advocate, for Petitioners. Coram : R.C. Chavan, J. Dated : 18 th September, 2009 Heard the learned counsel for the petitioners. This petition is directed against the orders passed by the learned Civil Judge, Junior Division, Buldana, below Exhibits 45 and 52, whereby in exercise of powers under Order 39, Rule 7 of the Civil Procedure Code, the learned Civil Judge appointed a Court Commissioner to inspect and measure the suit property when the inspection report of respondent No.2 is already on record. The learned counsel for the petitioners is right in submitting that a Commissioner cannot be appointed to gather evidence on behalf of a party. He has placed reliance on a judgment of this Court in Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare and others, reported at 2001(2) Mh.L.J. 959. 2 However, his contention that when the learned Trial Judge had rejected an application for injunction, she could not have invoked powers under Order 39, Rule 7 of the Code for appointment of a Commissioner for inspection of the property, based on a judgment of a learned Single Judge of Calcutta High Court in Smt. Kamala Devi Gupta v. Lalji Prasad Gupta and others (C.O. No.3040 of 1988 – reported at 1999(2) Calcutta Head Note 220, has to be rejected. Several rules under Order 39 of the Code give power to the Court to issue various interlocutory orders. Rule 7 is not a sub-rule of Order 39, Rules 1 or 2, in order to contend that once an application under Order 39, Rules 1 or 2 is disposed of, Rule 7 cannot be invoked. The powers under Rule 7 are independent of Rules 1 and 2 of Order 39 of the Code. Though the learned counsel for the petitioner is right in submitting that in the circumstances a Commissioner ought not to have been appointed, no case for interference in exercise of writ jurisdiction is made out, since the order is interlocutory in nature and is unlikely to cause any prejudice to the petitioner. The petition is, therefore, dismissed. Judge. pdl