1 wp 6992.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6992 OF 2011 Asaru Laxman Late .. Petitioner Versus Tukaram Laxman Late and others .. Respondents Shri Sanket S. Kulkarni, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH SEPTEMBER, 2011. PER COURT : . The petitioner is the original defendant No. 1. The respondent No. 1/original plaintiff filed a suit for partition and separate possession. The petitioner came with case that partition is already effected long back and has prayed for dismissal of the suit. 2. During the pendency of suit petitioner filed an application for appointment of Court Commissioner on the ground that the petitioner's dwelling house is in existence and so also there is a way and to bring that on record commissioner was sought to be 2 wp 6992.11 appointed. The Trial Court rejected the same. Aggrieved thereby present petition is filed. 3. Shri Sanket Kulkarni, the learned counsel for the petitioner submits that the petitioner is residing in his dwelling house in the suit field. That is required to be brought on record, so also the existence of various ways. The same would elucidate the matter. That would assist the Court in coming to the just conclusion. According to the learned counsel an independent person would be in a better position to throw light on the said aspect. The same cannot be said to be for the purpose of collecting evidence. 4. To appoint the commissioner or not is discretion of the Court. If the Court feels that the assistance of Court Commissioner is required to elucidate the matter in dispute, then in that case the Court may exercise its power U/Sec. 75 read with Order 26 Rule 9 of the Code of Civil Procedure. In the present case the Court has taken into consideration various facets and has rejected the application. The factum of the existence of dwelling house and the way can be proved by the petitioner by adducing evidence. 3 wp 6992.11 5. In the light of above no error has been committed by the Trial Court in passing the order. The writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11