(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2598 OF 2011 1. Karbhari s/o. Bhimaji Mhaske, Age : 48 years, Occupation : Agriculture & Service, R/o. Sarola Baddi, Taluka & District : Ahmednagar. 2. Arjun Bhimaji Mhaske, Age : 43 years, .. Petitioners Occupation : Agriculture, (Original defendant R/o. as above. nos.1 & 2) versus Genu s/o. Raghu Mhaske, Age : 71 years, Occupation : Agriculture, R/o. Sarola Baddi, .. Respondent Taluka & District : Ahmednagar. (Original plaintiff) ....................... Mrs. C.E. Gaikwad, Advocate, for the petitioners. ........................ (2) CORAM : B.P. DHARMADHIKARI, J. DATE : 6TH APRIL 2011 COURT'S ORDER : 1. Heard Adv. Mrs. C.E. Gaikwad, for the petitioners / original defendants. 2. The petitioners have challenged the order dated 29-1-2011, passed by the learned 6th Additional District Judge, Ahmednagar, below Exhibit 23 in Regular Civil Appeal No. 145 of 2008. 3. Trial court had rejected the prayer for appointment of court commissioner made by the petitioners. That rejection was questioned before this court and this court permitted the trial court to re-consider said aspect after parties led evidence. The petitioners then filed Regular Civil Appeal challenging the judgment and decree of the trial court. In that appeal, rejection of prayer under Order XXVI Rule 9 of CPC by the trial court is one of the grounds. In the said appeal, another application under Order XXVI Rule 9 of CPC came to be filed. By the impugned order, the appellate court has rejected it. (3) 4. Adv. Mrs. C.E. Gaikwad, for the petitioners, contends that the application could not have been treated as second application and in any case, it was only to assist the appellate court in the light of evidence which has come on record. 5. It is apparent that as rejection of prayer under Order XXVI Rule 9 of CPC by the trial court is being looked into by the appellate court, there is no question of appellate court appointing a commissioner at interlocutory stage. The appellate court has, therefore, rightly appreciated the controversy. I do not see any jurisdictional error or perversity. 6. In the result, the petition is dismissed. However, considering the fact that the Regular Civil Appeal, as filed, is of the year 2008 and the matter pertains to right to water from a well, said appeal is expedited and the appellate court shall attempt to decide the same at the earliest. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp2598