1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 3208 of 2009 Sow. Gojarabai w/o. Vithal Khalkar. .. Petitioner. versus Tatyabhau s/o. Madhav Gorde & Another. .. Respondents. .................. Mr. S.S. Chapalgaonkar, Advocate, for the petitioner. .................. CORAM : B.R. GAVAI, J. DATE : 8TH JUNE 2009. COURT’S ORDER : 1. By way of present petition, the petitioner challenges the order dated 17th February 2009 passed by the learned 3rd Joint Civil Judge (Junior Division), Kopargaon, below Exhibit 97 in Regular Civil Suit No. 200/2003, thereby rejecting the application filed by the present petitioner (plaintiff), and also application filed by defendant no.2 for appointment of court commissioner. 2 2. Mr. S.S. Chapalgaonkar, learned Counsel appearing for the petitioner, submits that in order to find out factual position regarding existence of the suit property, it was just and necessary that the court commissioner ought to have been appointed. He submits that the petitioner plaintiff has sought an order of injunction pertaining to House No. 571. He, therefore, submits that in the interest of justice, court commissioner ought to have been appointed. He relies on the judgment of learned Single Judge of this court in Second Appeal No. 97 of 2009, dated 4th May 2009. 3. The learned Judge of the trial court, while rejecting the application, has taken into consideration two grounds, firstly, that the application was filed at a belated stage after the evidence of both the parties was closed. Secondly, the application was in the nature of collecting evidence in support of the case of the parties, which cannot be permitted. 4. In so far as the reliance placed by the learned Counsel appearing for the petitioner, on the judgment delivered by this court in Second Appeal No. 97 of 2009 is concerned, the learned Single Judge in the facts of the case has found that it was necessary to get the suit property measured by a Cadastral Surveyor by appointing him as a court 3 commissioner, so as to find out position regarding encroachment. The said judgment is delivered on the facts of the said case and it cannot be said that the court has held in the said case, that it is necessary that wherever a dispute regarding possession of the property arises, it is incumbent upon the Civil Judge to appoint a Cadastral Surveyor as a court commissioner. 5. In that view of the matter, no perversity could be found with the approach adopted by the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 6. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ...................... bgp/wp3208