1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 637 OF 2010 Muktabai Sakharam Patil & Ors. .. Petitioners V/s Kamlibai Halya Thombre & Ors. .. Respondents Mr. Indrajeet R. Kurlarni for the petitioners. Mr.R.S. Apte i/b Mr. S.R. Patil for respondent nos.1 to 5. Mr. Ajit Salvi for respondent no.9. Ms. Gauri Godse for respondent no.7. CORAM : D.G. KARNIK, J. DATE : 22ND JUNE 2010 P.C. : 1. Heard. 2. By this petition, the petitioners challenge the common order dated 16th December 2009 passed by the 4th Joint Civil Judge, Senior Division, Thane rejecting their applications at Exhibits 126 and 127 of R.C.S. No. 514 of 2003. 3. Exhibit 126 was an application made by the petitioners- plaintiffs for stay of the suit till the hearing of the contempt petition. Exhibit 127 was an application for appointment of a Court Commissioner. 2 4. No contempt petition is pending in this Court. What the petitioners therefore appear to mean by contempt petition is their application under Order 39 Rule 2A of the Code of Civil Procedure Code. I see no reason why the learned Judge should have stayed the petitioners’ own suit on account of pendency of the petitioners’ application for referring the mater in contempt jurisdiction to this Court. 5. As regards the application for appointment of a Court Commissioner, the petitioners appear to want to collect evidence by appointment of the Court Commissioner. A Court Commissioner cannot be appointed for collecting the evidence on behalf of a party. The petitioners are free to adduce evidence regarding the alleged breach and the construction alleged to have been carried out by the respondents in breach of the order of the Court. There is one more reason for rejecting the application for appointment of the Court Commissioner. Prayer clause (a) states that a competent officer of the Thane Municipal Corporation be appointed as the Court Commissioner for taking the measurement and photographs. In para 4 of the very application, the petitioners have alleged that the officers of the Thane Municipal Corporation are acting in collusion with the respondents. I 3 fail to see why an officer from amongst the officers of the Municipal Corporation who are in collusion with the defendant should be appointed as the Court Commissioner. There is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)