[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 3566 OF 2008 SHRI KAMLAKAR JANARDAN DIXIT ... PETITIONER. VS. NAVINCHANDRA MAHADEO RAI ... RESPONDENT. MR. M.M.SATHAYE FOR THE PETITIONER. MR. P.S.DANI FOR THE RESPONDENT. CORAM CORAM CORAM : : : A.A.SAYED, J. A.A.SAYED, J. A.A.SAYED, J. DATE DATE DATE : JUNE 11, 2008. : JUNE 11, 2008. : JUNE 11, 2008. P.C. 1. This petition is filed challenging the order passed by the Joint Civil Judge J.D., Nasik whereby the Court appointed a Commissioner to visit the suit property and submit his report on the state of the door in the northern side wall of the suit property, the position of the staircase and to ascertain whether the northern side door can be opened and whether there is any access from the northern side door of the petitioner’s property to the property of the respondent, as also existing latrines and water tap and to take photographs of the suit property. 2. The suit is filed by the petitioner who is the [ 2 ] original plaintiff in the suit , claiming easementary rights to the property of the respondent/ defendant. On going through the application filed by the petitioner, it reveals that the petitioner has not, in fact, applied for appointment of court commissioner but had applied to the Court/ learned Trial Court Judge to visit the suit property. However, the learned Trial Judge thought it fit to appoint a Court Commissioner. 3. The learned Counsel for the petitioner has contended that there was an earlier application for appointment of Court Commissioner which was refused and this application is made again only when the cross-examination of the petitioner was about to begin. He has taken me through the application of the respondent, which states that if the inspection of the suit properties are taken it would be convenient for the respondent to cross-examine the petitioner-plaintiff. The learned Counsel further submitted that the photographs of the suit property were already on record and no useful purpose would be served to appoint the Court Commissioner and it tantamounts to collecting evidence. 4. The learned counsel for the respondent has supported the impugned order and submitted that the discretion exercised by the Trial Court Judge is judicial discretion and this court should not interfere with it in exercise of its writ jurisdiction. He [ 3 ] further pointed out the provisions of Order XXVI Rule 9 of the Code of Civil Procedure in this context. 5. On going through the impugned order, I find that the learned Trial Judge has specifically stated in his order that to come to a proper and definite conclusion and for giving assistance to the court and to elucidate the matter in controversy he has appointed the Court Commissioner. 6. In my view the discretion exercised by the learned Trial Judge cannot be faulted. What is to be noted is that it is the Court which thought it fit to appoint the Court Commissioner for its assistance and to elucidate the matter in controversy. Pertinently, the respondent had not sought a Court Commissioner but his prayer was for the Court to inspect the suit property. Moreover, I am informed that the Court Commissioner has already visited the property in question and carried out the commission work. 7. In this view of the matter, impugned order does not warrant any interference in exercise of writ jurisdiction of this court under Article 227 of the Constitution of India. 8. The writ petition is dismissed. ..... [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]