1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6986 OF 2009 Sharad s/o Maroti Patange, Age: Major, Occ: Business, R/o. Patange Building, Dayaram Road, Latur, Tq. & Dist. Latur. .. Petitioner Versus Shamsundar s/o Hanumandas Mantri, Age: 48 years, Occ: Business, R/o. Mantri Niwas, Kapad Galli, Latur, Tq. & Dist.Latur. .. Respondent ... Mr. A.S. Deshpande, Advocate for petitioner. ... CORAM : K.K. TATED, J. DATE : 16TH OCTOBER, 2009. PER COURT : 1. Heard learned Counsel for the petitioner. 2. By present petition under Articles 226 and 2 227 of the Constitution of India, the petitioner is challenging the order dated 14-08-2009 passed by the Joint Civil Judge, Senior Division,Latur below Exhibit-20 in Rent Suit No. 1/2007 rejecting the petitioner - original defendant's application for appointment of Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. The respondent - original plaintiff filed Rent Suit No.1/2007 against the petitioner - original defendant for possession of the shop premises out of MH-R-6/727 and C.T.S. No. 9868 under the provisions of Maharashtra Rent Control Act, 1999. In the said suit, the petitioner - original defendant filed his W.S. dated 04-06-2007 raising plea that the respondent has another shop premises for carrying on his business. Thereafter, the petitioner filed application dated 01-08-2008 below Exhibit-20 under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Court Commissioner for local investigation of the respondent - original plaintiff's property 3 C.T.S. No. 9868/2 at Kapadgalli, Latur. In the said application, the petitioner stated that respondent has another sufficient accommodation in the complex belonging him in which the suit shop is located. He further stated in this application that shopping complex was of three storied. He further stated that the construction of third floor was going on and there were various other tenants in the said premises. Said application was rejected by the trial Court on the ground that the Court Commissioner cannot be appointed for collecting evidence. 3. As the petitioner raised the plea in his W.S. that respondent has other premises to carry on his or her family business, it is his duty to adduce evidence in that respect. Court Commissioner cannot be appointed for collecting evidence for the applicant-party. In the matter of The Institution of Engineers (India) and 4 another vs. Bishnu Pada Bag and another reported in A.I.R. 1978 Calcutta 296, Calcutta High Court held that Court Commission cannot be issued for the purpose of collecting evidence in a suit. Head Note A of this judgment reads as under. "Civil P.C. (5 OF 1908), O. 39, R.7 - Inspection of subject- matter of suit - No commission can be issued for purpose of collecting evidence in suit". In similar way, our High Court also held in the matter of Sanjay s/o Namdeo Khandare vs. Sahebrao s/o Kachru Khandare reported in 2001 B.C.R.(1) 800 that it is well settled law that Court Commissioner cannot be appointed for collecting evidence. Karnataka High Court in the matter of Miss. Renuka vs. Tammanna reported in 2007 AIRKarr-4-485 held that Court Commissioner cannot be appointed to collect the evidence in support of applicant's claim. Para 7 of the said judgment reads as under. 5 "7. It is settled position of law that Court Commissioner cannot be appointed to collect evidence in support of a claim. After completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties, then the Court may appoint a commissioner for the purpose of clarification of such an ambiguity. In the instant case the evidence has not yet commenced and therefore the question of ambiguity in the evidence will not arise at this stage. The trial Court without considering the settled position of law committed an error in passing the impugned order appointing a Court commissioner. On this ground the impugned order is liable to be quashed". 4. After perusing the petitioner's application dated 01-08-2008 below Exhibit-20 under Order 26 Rule 9 of the Code of Civil Procedure, I am of the opinion that this application is only meant for collecting evidence for the petitioner- defendant. Considering this fact and after going through well reasoned order passed by the trial Court on 14-08-2009, I do not find any substance in the present Writ Petition and same 6 is dismissed summarily with no order as to costs. [ K.K. TATED, J.] sut/OCT09/wp6986.09