1 WP No.5212/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5212 of 2011 Sanjay Namdev Pawar & ors. ... Petitioners versus Crystal Properties ... Respondent ... Mr.V.G. Peshave for the petitioner. Mr.R.B.Paranjape i/b Mr.J.D. Khairnar for respondent. CORAM : D.G. KARNIK, J DATED : 13th July 2011 P.C. 1. This petition is directed against an order dated 20 June 2011 passed by the 6th Addl. Judge, Small Causes Court and Jt. Civil Judge, Sr. Division, Pune rejecting the application of the petitioners (original plaintiffs) for appointment of a Court Commissioner. 2. Petitioners claim to be the owners of the suit property. They executed an agreement of sale in favour of respondent and also executed a power of attorney in their favour. According to the petitioners, on account of the breaches committed by the respondent, agreement as well as power of attorney was terminated. Despite the termination, the respondent executed a sale deed in favour of himself in purported exercise of power of attorney given to 2 WP No.5212/11 him. The petitioners therefore filed a suit for a declaration that the sale deed was void and other ancillary declarations and also for an injunction restraining the respondent from disturbing their possession. They claim that they are in exclusive possession of the suit property. During the pendency of the suit, separate applications for injunction was made by both sides. However, both the parties agreed to maintain status quo and passed a purshis to that effect. The evidence of parties in the suit is being recorded. At that stage, petitioners gave an application for appointment of a Court Commissioner for site inspection and the direction to the Court Commissioner to submit a report as to the existence or otherwise of brick kilns which, according to the petitioners, are run by them. The application was rejected. Petitioners challenges that order. 3. It is settled principle of law that Court Commissioner cannot be appointed for collecting evidence. Whether the brick kilns exist in the suit property or not is a question of fact which has to be determined on evidence adduced by the parties. They could have also examined neighbors about the existence of the brick kilns or adduced other appropriate evidence in support of their contention of existence of the brick kilns. In my view, appointment of Court Commissioner for the purpose of ascertaining whether there are brick kilns or not would amount to gathering of evidence by or through the Court Commissioner which is not permissible. Petition is rejected summarily. (D.G.KARNIK, J)