1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.952 OF 2010 Amarchand Kishanchand Agarwal ...Petitioner vs. Vithal Krishnaji Raikar (since deceased through legal heirs) 1 Smt.Rukmini Vithal Raikar 2 Balkrishna Vithal Raikar 3 Satish Vithhal Raikar 4 Indrajit Vithal Railkar ...Respondents Mr.Vishal Kanade i/b Mr.Sanjay Gawde for the petitioner None for the respondents CORAM :A.S.OKA,J. DATE : FEBRUARY 10, 2010 P.C. 1 Heard the learned counsel for the petitioner. The petitioner is a defendant in a suit for eviction filed by the respondents. The suit for eviction is filed on various grounds including the ground of bonafide requirement. An application was made by the petitioner under Rule 9 of Order XXVI of the Code of Civil Procedure,1908 for appointment of the Court Commissioner. It was pointed out in the application that in the written statement filed by the petitioner, the details of the various properties held by the respondents have been set out. It is disclosed in the application that there was earlier application made for appointment of the Court Commissioner which has been rejected by the trial Court. It is pointed out in the application that the respondents have filed an affidavit in lieu of examination-in-chief. In the said affidavit, details and particulars of the properties possessed by them have not been set out. It is alleged that during the pendency of the suit, the respondents have obtained possession of the premises in 2 possession of the other tenants. It is further alleged that during the pendency of the suit, the respondents have carried out structural changes in the building and in the open space, sheds have been constructed. The petitioner alleged that by amending the written statement all these contentions have been raised. The prayer in the application is that the Court Commissioner be appointed and the Commissioner be directed to visit the properties referred to in the written statement allegedly held by the respondents and submit a report after taking out photographs and carrying out measurements. By the impugned order, the said application has been rejected on the ground that an attempt is being made by the petitioner to correct the evidence. 2 After having heard the learned counsel for the petitioner, I find that at this stage a request for appointment of the Court Commissioner could not have been considered by the trial Court. The witnesses of the respondents are yet to be cross examined. The petitioner can put his case to the witnesses and question the witnesses on the area of the premises allegedly held by them and on other particulars. If it is found that the respondents are not coming out with truth, or if the respondents decline to disclose the material facts, the trial Court can always exercise power of appointing the Court Commissioner. One of the grounds of eviction is bonafide requirement. Therefore, the premises/properties in possession of the respondents have a direct bearing on the requirement pleaded by the respondents. The said aspect is relevant for deciding the issue of comparative hardship. If the landlord does not disclose the material particulars for purpose of deciding the issue of comparative hardship, the trial Court can always take recourse to power of appointing the Court Commissioner. 3 In such a case, it cannot be said that the appointment of the Court Commissioner amounts to collection of evidence. Though no interference is called for at this stage, impugned order will not preclude the petitioner from making a fresh application for the same relief at later stage. 3 Subject to what is observed above, writ petition is not entertained and the same is rejected. JUDGE