1 WP No.4657/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4657 of 2011 Dayaghan Gajanan Mhatre ... Petitioner versus Shri Gajanan Damodar Mhatre and ors. ... Respondents ... Ms.Anulata Saundankar i/b Ms.Gauri Godse for the petitioner. CORAM : D.G. KARNIK, J DATED : 19th July 2011 P.C. 1. This petition is directed against an order passed by the District Judge, Alibag rejecting the application of the petitioner for appointment of Court Commissioner for measurement of the land in appeal. 2. The petitioner is the original plaintiff. His suit was partly decreed. He was declared to be the owner of the suit property. However, his prayer for injunction and mandatory injunction was rejected. Aggrieved petitioner filed an appeal and in which he made an application for appointment of a Court Commissioner for measurement of the suit land. By an order dated 7 April 2010, the application was rejected. That order is challenged in the present petition. 2 WP No.4657/11 3. Ordinarily, a Court Commissioner for local inspection is to be appointed under Order 26 Rule 9 of the Code of Civil Procedure in a suit. Under Order 26 Rule 10 Sub-rule (2), the report of the Court Commissioner is regarded as evidence in the suit. If the report of the Court Commissioner is to be regarded as evidence in the suit then the evidence must be adduced at the stage of the trial and not at the appellate stage unless the requirements of Order 41 Rule 27 are satisfied. The application for appointment of Court Commissioner in appeal did not satisfy the requirements of Order 41 Rule 27 of the Code in the present case and therefore, no error was committed by the District Judge in rejecting the application for Court Commissioner. Petition is rejected summarily. (D.G.KARNIK, J)