(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7778 OF 2009 Babasaheb Namdev Gunjal. .. Petitioner (Original plaintiff) versus 1. Sopan Gangaram Gunjal, .. Respondents 2. Revaji Savleram Gunjal, (Original 3. Kailas Savleram Gunjal, defendants) 4. Somnath Savleram Gunjal. .......................... Mr. S.K. Shinde, Advocate, for the petitioner. .......................... CORAM : B.R. GAVAI, J. DATE : 23RD NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner has challenged the order dated 17th September 2009, passed by the learned Joint Civil Judge (Junior Division), Sangamner, below Exhibit 15, in Regular Civil Suit (2) No. 429/2008, thereby rejecting the application filed by the present petitioner for appointment of court commissioner. 2. The petitioner plaintiff has filed a suit for perpetual injunction, thereby restraining the respondents from obstructing his peaceful possession over suit premises and also for an order prohibiting them from making any encroachment on his property from the southern and northern part. During the pendency of the suit, an application came to be filed for appointment of court commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908. The same is rejected. Hence, the present petition. 3. Mr. S.K. Shinde, learned Counsel appearing for the petitioner, submits that the learned Judge of the trial court has, on erroneous premise, rejected the application. He submits that the appointment of court commissioner was found necessary in view of subsequent development and, therefore, there could not have been pleading to that effect in the plaint. 4. The matter of appointment of court commissioner, under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure, is within the discretion of the trial court. Unless it is found that the discretion exercised by the learned Judge of the trial court, has been exercised with perversity, no interference is warranted. 5. The learned Judge of the trial court has found that the appointment of court commissioner was sought with a view to collect (3) evidence in support of the plaintiff's case and, as such, it could not be allowed. 6. No perversity is noticed in the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 7. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7778