1 W.P.No.8633/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.8633 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.A.G.Godhamgaonkar, advocate for the petitioner. Smt.B.B.Gunjal, advocate for Respondent No.2. CORAM : S.V.GANGAPURWALA,J. Date : 16.11.2011. PER COURT : 1. Heard. 2. The petitioner is the original plaintiff who had filed suit for perpetual and mandatory injunction, so also declaration of easementary right. During pendency of the suit, the plaintiff moved an application for appointment of Court Commissioner for inspecting the suit site and to submit the report thereof with the map. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 3. Mr Godhamgaonkar, learned counsel for the petitioner strenuously contends that the dispute is regarding the construction i.e. being carried out by the Respondent No.1 in the lane and so also affecting the right of the light and air of the plaintiff. In such 2 W.P.No.8633/11 circumstances, the local investigation is necessary. The learned counsel relies on the provisions of Order 26 Rule 9 of the C.P.C. and contends that in such circumstances, to elucidate the matter in dispute, the appointment of Court Commissioner is necessary for making the local inspection. The Commissioner would be in a better position to bring on record the existing state of facts as on the site, which can not be readily brought on record by oral evidence. 4. Mrs.Gunjal, leaned counsel supports the order and submits that the local investigation can not be allowed for collecting the evidence. The trial Court has properly considered all these aspects and has rightly rejected the application. 5. To appoint the Court Commissioner or not is the discretion of the Court. The Court has powers U/s 75 read with Order 26 Rule 9 of the C.P.C. to appoint the Court Commissioner. The Court Commissioner can be appointed if the Court feels it necessary for elucidating the matter in controversy. If by other evidence,the matter can be decided then in such circumstances, it is not necessary for the Court to appoint the Commissioner. 6. The trial Court has exercised the discretion and has considered that it is not necessary to appoint the Court Commissioner. 7. The parties are yet to adduce evidence. After the parties adduce evidence and thereafter, if the party feels that the Court 3 W.P.No.8633/11 Commissioner is required to be appointed then application can be made at that stage and the Court may consider the said application on its own merits. 8. In view of the above, the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.11.2011. asp/office/wp8633.11 4 W.P.No.8633/11