1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6466 OF 2009 MANIKRAO RAJARAM KSHIRSAGAR ..PETITIONER VERSUS SHYAMSUNDAR HANUMANDAS MANTRI ..RESPONDENT ... Shri K.A.Kadam, Advocate for the petitioner. ... CORAM : K.K. TATED, J. DATED: October 1, 2009 1. Heard. 2. Present writ petition is preferred by the original defendant under Articles 226/227 of the Constitution of India challenging the order passed by the learned Joint Civil Judge (Senior Division), Latur below Exhibit 29 on 14.8.2009 in Rent Suit No.2 of 2007. 3. Respondent (original plaintiff) had filed the said suit for possession of shop premises - Municipal House No.R-6/727 and CTS No. 9868/02 under the provisions of the Maharashtra Rent Control Act, 1999. In the said suit, the petitioner (original defendant) preferred an application under Order XXVI Rule 9 of Code of Civil Procedure ("CPC" for brevity) on 5.2.2009 for appointment of the Court Commissioner to find out as to 2 whether the respondent (plaintiff) is having premises other than the suit premises in the shopping complex, in which the suit shop is situated. 4. Said application under Order XXVI Rule 9 of CPC was rejected by the learned Joint Civil Judge (Senior Division), Latur by the impugned order dt. 14.8.2009 on the ground that it will amount to collection of evidence. 5. It is well settled in law that the Court Commissioner cannot be appointed to collect the evidence against the opponent. This Court, in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare [2001 BCR (1) 800] has held as under:- " This revision application takes exception to the order passed by the Civil Judge, Junior Division, Mahagaon, dated July 24, 1998, directing appointment of Court Commissioner. On going through the said order, it would appear that the Court has appointed the Court Commissioner empowering him to visit and inspect the spot being suit field and to submit report regarding actual possession of the suit field. This would tantamount to appointing Court Commissioner for collecting evidence regarding possession. It is well settled law that the Court Commissioner cannot be appointed for collecting evidence. ....." Further, in the case of Miss Renuka Vs. Tammanna [AIR 2007 Kar. 485], the Karnataka High Court has held as under :- " It is settled position of law that Court Commissioner cannot be 3 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 is 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." Further, in the case of Owners and Parties interested in the Vessel Vs. The State Trading Corporation of India [AIR 200 Cal 91], it has been observed by the Calcutta High Court; " The suit filed by the plaintiff was a suit for damages. It, therefore, was required to prove its own claim by adducing independent evidence. The Court had no jurisdiction to appoint a receiver for the purpose of collecting evidence and more so by assessing the damages allegedly suffered by the plaintiff. Such a judicial function, in our opinion, cannot be delegated. It is open for the plaintiff to appoint his own surveyor and get the damages assessed and prove his report in the suit. A Commissioner cannot be appointed to collect evidence in respect of the alleged damaged goods which are in custody of the plaintiff. Such evidence in support of the Plaintiff's claim cannot be permitted to be collected in a suit for damages at the instance of a party." 6. Considering the above facts and circumstances, I could not find 4 any substance in the Writ Petition. It is summarily rejected. No order as to costs. (K.K.TATED,J.) akl