1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4225 OF 2009 1. Shri. Dinanath s/o. Ramkrishna Saraf, Age 72 yrs., Occu. Business, R/o. T.P. Scheme No. 1, Final Plot No. 48, Municipal Committee No. 184, Balaji Peth, Jalgaon, Tq. & Dist. Jalgaon. 2. Shri. Sunil s/o. Dinanath Saraf, Age 37 yrs., Occu. Business, R/o. T.P. Scheme No. 1, Final Plot No. 48, Municipal Committee No. 184, Balaji Peth, Jalgaon, Tq. & Dist. Jalgaon. ....Petitioners. Versus 1. Suresh s/o. Vasudeo Saraf, Age 55 yrs., Occu. Business, R/o. C/o. M/s. Nandurbarkar Saraf, M/s. Vasudeo Murlidhar Saraf, Sarafa Bazar, in front of Dilipkumar Hirachand, Jalgaon, Tq. & Dist. Jalgaon. 2. The Commissioner, Jalgaon City Municipal Corporation, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. 3. The Asstt. Director, Town Planning, Jalgaon City Municipal Corporation, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. ....Respondents. Shri. S.S. Bora, Advocate for petitioner. Shri. J.R. Shah, Advocate for respondent No. 1. Shri. Chabada h/f. Shri. P.R. Patil, Advocate for respondent No. 2 & 3. 2 WITH WRIT PETITION NO. 4261 OF 2009 Venubai @ Vanmala Radhakrushna Sonar, Since deceased per L.Rs. 1. Shradha Deepak Sonar, Age 49 yrs., Occu. Household, R/o. T.P. Scheme No. 1, Final Plot No. 48, Municipal Committee No. 184, Balaji Peth, Jalgaon. 2. Sou. Nileema Manoj Sonar, Age 41 yrs., Occu. Household, R/o. Ambika Colony, Nandurbar Taluka and Dist. Nandurbar. 3. Sou. Reshma Hemant Parekh, Age 36 yrs., Occu. Household, R/o. Comrej Chowk, Surat, Tq. & Dist. Surat (Gujrat). ....Petitioners. Versus 1. Suresh s/o. Vasudeo Saraf, Age 55 yrs., Occu. Business, R/o. C/o. M/s. Nandurbarkar Saraf, M/s. Vasudeo Murlidhar Saraf, Sarafa Bazar, in front of Dilipkumar Hirachand, Jalgaon, Tq. & Dist. Jalgaon. 2. The Commissioner, Jalgaon City Municipal Corporation, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. 3. The Asstt. Director, Town Planning, Jalgaon City Municipal Corporation, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. ....Respondents. 3 Shri. S.S. Bora, Advocate for petitioner. Shri. J.R. Shah, Advocate for respondent No. 1. Shri. Chabada h/f. Shri. P.R. Patil, Advocate for respondent No. 2 & 3. WITH WRIT PETITION NO. 4255 OF 2009 Rameshwar Vasudeo Saraf, Age 49 yrs., Occu. Business, R/o. 184, Balaji Peth, Jalgaon, Tq. & Dist. Jalgaon. ....Petitioners. Versus 1. Suresh s/o. Vasudeo Saraf, Age 55 yrs., Occu. Business, R/o. C/o. M/s. Nandurbarkar Saraf, M/s. Vasudeo Murlidhar Saraf, 179, Bhavani Peth, Jalgaon, Tq. & Dist. Jalgaon. 2. Jalgaon City Municipal Commissioner, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. 3. The Asstt. Director, Town Planning, Jalgaon City Municipal Corporation, Jalgaon, Mahatma Gandhi Road, Neharu Chowk, Jalgaon, Tq. & Dist. Jalgaon. ....Respondents. Shri. G.V. Wani, Advocate for petitioner. Shri. J.R. Shah, Advocate for respondent No. 1. Shri. Chabada h/f. Shri. P.R. Patil, Advocate for respondent No. 2 & 3. 4 CORAM : R.K. DESHPANDE, J. DATE : 20th July, 2010. ORAL JUDGMENT : 1. All these three writ petitions are preferred by the original plaintiffs, challenging the order dated 31st of March 2009 passed by the 2nd Joint Civil Judge, Senior Division, Jalgaon, allowing the applications for appointment of Court Commissioner under Order 26, Rule 9 of the Civil Procedure Code (CPC) filed by the original respondent No. 1, who is the landlord in respect of part of suit premises. The Trial Court has allowed the applications, directing the parties to provide the name of the architect or civil engineer for the purpose of inspection of the suit properties. The matters are at the stage of orders on the applications under Order 39, Rule 1 and 2 of CPC. 2. Notices in these matters were issued on 8th of July 2009 for final disposal of the matters and an ad-interim relief was granted, staying the effect and operation of the orders. In response to the notices, the learned counsel Shri. J.R. Shah appears for respondent No. 1 and Shri. Chabada holding for Shri. P.R. Patil, appears for respondent Nos. 2 and 3 in all these writ petitions. The learned counsel for the parties submit that the matters can be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. Heard the matters by consent of parties. 3. Pending the decision of the applications under Order 39, Rules 1 5 and 2 of CPC filed by the plaintiffs, for grant of injunction, restraining the defendants from demolishing the suit property or any portion thereof, the defendant No. 1 has filed an applications under Order 26, Rule 9 of CPC for appointment of Court Commissioner to visit the spot and inspect the properties in question, as to whether it is in dilapidated condition or not. These applications have been allowed by the Trial Court by the impugned orders, holding that no prejudice will be caused to any of the parties and the report of the Court Commissioner would avoid delay in further disposal of the matters. It has further been observed that the Commissioner may require to be appointed at subsequent stage and hence, no prejudice will be caused, if the Commissioner is appointed at this stage, to find out the real factual position. 4. Shri. Satyajit Bora, the learned counsel appearing for the petitioners in Writ Petition Nos. 4225/2009 and 4261/2009 and Shri. Wani, the learned counsel appearing for the petitioner in Writ Petition No. 4255/2009 have urged that such an applications for appointment of Court Commissioner under Order 26, Rule 9 of CPC should not have been entertained at the time of deciding the applications under Order 39, Rules 1 and 2 of CPC. According to them, it is for the plaintiffs to establish the prima facie case and to satisfy the Court about the reliefs which are claimed in the applications for temporary injunction. According to them, it is not the function of the Court to appoint the 6 Commissioner to collect the evidence and they relied upon the decision of the learned Single Judge of this Court reported in 2001 (2) Mh.L.J. 959 in the case of Sanjay Namdeo Khandare vs. Sahebrao Kachru Khandare and others. 5. Shri. J.R. Shah, the learned counsel appearing for the respondent No. 1 and Shri. Chabada holding for Shri. P.R. Patil, the learned counsel for the respondent Nos. 2 and 3, in all these writ petitions, on the contrary, have urged that the applications may have been styled as one under Order 26, Rule 9 of CPC, but such an exercise of appointment of Commissioner can be carried out by the Civil Court, even at the time of deciding of applications under Order 39, Rule 1 and 2 of CPC. Reliance is placed on Order 39, Rule 7 of CPC, which empowers the Court, on the application of any party to a suit and on such terms as if thinks fit, to appoint a person for inspection of the property, which is the subject matter of such suit, or as to which any question may arise in the suit. Hence, according to them, the Civil Court has jurisdiction under Order 39, Rule 7 of CPC to carry out such exercise at the time of deciding the applications for temporary injunction. Reliance is placed upon the decision of the Apex Court reported in 2008 (10) SCC 225 in the case of Radhey Shyam Rasstogi Vs. Ashish Kumar and another, wherein it has been held that in the suit for eviction, on the ground that the premises are dilapidated and in dangerous condition, an independent advocate/engineer Commissioner should be appointed for recording 7 proper finding in respect thereof. 6. After going through the orders passed by the Trial Court, which are impugned in the petitions, it is apparent that the order has been passed on the applications under Order 26, Rule 9 of CPC, particularly when, the Court has observed that at subsequent stage of the suit, such an appointment will have to be made, to find out the real and actual position of the premises in question. The orders have been passed on the applications filed by the defendant No. 1, who is landlord. It is for the plaintiff to establish and to satisfy the Trial Court in respect of prima facie case for granting injunction. The applications have not been filed by the plaintiff. These are also not the applications under Order 39, Rule 7 of CPC. It is for the plaintiffs to bring on record such evidence, as is available with them to satisfy the Court on all the three aspects i.e. the prima facie case, balance of convenience and irreparable loss. From the orders passed by the Trial Court, it is apparent that the purpose of the appointment of the Court Commissioner is, to find out the real and actual position of the premises in question and this is the main issue, which is involved in the cases. It cannot be decided by appointment of the Court Commissioner to collect the evidence. The decision of this Court in Sanjay's case cited supra supports this view. The orders, therefore, cannot be sustained and are liable to be set aside. The Trial Court has committed an error of jurisdiction in entertaining the applications and passing the order. 8 7. The decision of Apex Court relied upon by the respondent for the reason that decree for eviction was passed. In appeal, application for appointment of Commissioner was made, which was rejected. It was not the stage of application under Order 39, Rule 1 and 2 of C.P.C. Hence, the decision is not applicable. 8. In the result, the instant writ petitions are allowed. The order dated 31st of March 2009 passed by the learned 2nd Joint Civil Judge, Senior Division, Jalgaon on the applications for appointment of Court Commissioner in Regular Civil Suit Nos. 260/2008, 264/2008 and 271/2008 are hereby quashed and set aside. Applications filed by the defendants for appointment of Court Commissioner are dismissed. Rule is made absolute in the aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp4225.09