1. wp 8581-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8581 OF 2010 Shrimant Shivraj Amrutrao Pantpratinidh & Anr.. Petitioners Vs Rayat Shikshan Sanstha & Anr .. Respondents Mr. Rahul Kulkarni & Mr. Abaysing Shinde for the Petitioners Mr. Vivek Salunke i/b Mr. P.B. Shah for Respondent No. 1 CORAM : D.G. KARNIK, J. DATE : 6th JULY, 2011. P.C.: 1. Heard. 2. The petitioners are the original plaintiffs. They filed a suit for injunction restraining the respondents from disturbing their possession in respect of the suit property. The suit was dismissed. Being aggrieved by the said order, they preferred an Appeal. In the appeal, they made an application for appointment of the Court Commissioner. That application was rejected. The said order is challenged in this petition. 3. Under Order XXVI, Rule 10 of the Code of Civil Procedure (for short, “ the Code”), the Court Commissioner can be appointed 1 1. wp 8581-10.doc for local inspection of the property and under sub-rule 2 of Rule 10, the report of the commissioner amounts to evidence in the suit. Since the report of the commissioner is to be regarded as evidence in the suit and it must be adduced in the Court at the first instance. If it is to be adduced at the stage of appeal, it must satisfy the requirements under Order XLI, Rule 27 of the Code. No ground is made out for allowing additional evidence under Order XLI, Rule 27 of the Code. As such the Appellate Court was not entitled to receive any additional evidence in the form of the report of the Court Commissioner and the Appellate Court did not commit any error in rejecting the application. The petition is rejected summarily. [ D.G. KARNIK, J ] 2 1. wp 8581-10.doc 3