(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7803 OF 2009 Ratnabai Vijaykumar Roy, Age : 36 years, Occupation : Household, R/o. Gandhi Chowk, Bazar Peth, At Post : Dondaicha, Taluka : Shindkheda, District : Dhule. .. Petitioner. versus 1. Nana Bansilal Pawar, Age : 48 years, Occupation : Service. 2. Shakuntala Nana Pawar, Age : 44 years, Occupation : Household. Respondent nos.1 & 2, R/o. Gandhi Chowk, Bazar Peth, At Post Dondaicha, Taluka : Shindkheda, District : Dhule. 3. Dhondaicha Warwade Municipal Council, Dhondaicha, Taluka : Shindkheda, District : Dhule, Through Chief Officer. .. Respondents. .......................... (2) Mr. S.P. Brahme, Advocate, for the petitioner. .......................... CORAM : B.R. GAVAI, J. DATE : 23RD NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 14th November 2008, passed by the learned Civil Judge (Junior Division), Condaicha, below Exhibit 68 in Regular Civil Suit No. 2/2006, thereby rejecting the application filed by the present petitioner for appointment of court commissioner. 2. The petitioner plaintiff has filed a suit against the defendants for mandatory injunction, directing the respondents to demolish the compound wall which is allegedly constructed by the defendants in the property belonging to the plaintiff. 3. The suit is resisted by the defendants on the ground that the compound wall is very much within the area owned by them and a counter claim is also filed seeking a perpetual injunction restraining the plaintiff from interfering with the peaceful possession of the defendant and from demolishing the compound wall. (3) 4. During the pendency of the suit, an application under Order VI Rule 11 of the Code of Civil Procedure, 1908, came to be filed by the present petitioner for appointment of court commissioner. The same is rejected. Hence, the present petition. 5. Mr. S.P. Brahme, learned Counsel appearing for the petitioner, submits that in order to find out factual position, it was necessary that a court commissioner should have been appointed. He submits that, as a matter of fact, in the reply filed by the defendants to the application filed by the petitioner, the defendants have in the alternative said that they have no objection to appointment of court commissioner. 6. The learned Judge of the trial court has found that the application was nothing else but in the nature of collecting evidence through court and, as such, cannot be allowed. It has been found that it is duty of the plaintiff to prove his case by adducing evidence. 7. The matter of appointment of court commissioner is within the discretion of the trial court. Unless it is found, that the discretion exercised by the trial court, has been exercised with perversity, no interference is warranted. No perversity could be found with the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. (4) 8. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7803