1. Rule. Rule made returnable forthwith and heard finally by consent.

2. The petitioner takes exception to the order dated 06.03.2010 passed by the Civil Judge, J.D., Parli Vaijnath. By that order, the application filed by the respondent/original plaintiff to measure the land bearing Gat No.83 including the disputed area of 37 R, by appointing a Cadestral Surveyor or T.I.L.R. as a Court Commissioner, came to be allowed.

3. The suit being R.C.S. No.180 of 2007 is filed by the respondent No.2/original plaintiff against the petitioner/original defendant for recovery of an area of 37 R from the land Gat No.83. The learned Counsel for the petitioner/original defendant submitted that the trial of the suit is virtually complete and written arguments are filed and the matter is reserved for judgment by the learned Judge and it is thereafter at this belated stage, the application for appointment of Court Commissioner to measure the disputed land, has been filed by the respondent No.2. Alluding to para 3 of the plaint, learned Counsel for the petitioner submitted that the respondent No.2 bas himself described the suit land with measurements in the plaint and bas also examined one Cadestral Surveyor working under T.I.L.R. in evidence. The learned Counsel has placed reliance upon case of Sanjay s/o. Namdeo Khandare Vs. Sahebrao s/o. Kachru Khandare, 2001(1) BCR 800: [2001(1) ALL MR 653], wherein a learned Single Judge of this Court, has held that the appointment of Court Commissioner to submit report regarding actual possession of suit field would tantamount to collecting evidence, which is not permissible.

4. Learned Counsel for respondent No.2 on the other hand submitted that the order of the Court Commissioner has been passed under Order 26, Rule 9 of the C.P.C., whereunder it is discretion of the Court to order local investigation for the purpose of elucidating any matter in dispute and such investigation is always permissible. The learned Counsel for respondent No.2 has relied upon the following three judgments viz. [1] Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar, 2010(3) Mh.L.J. 956 : [2010(2) ALL MR 694]; [2] Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil, 2004(1) Mh.L.J. 138 : [2003(4) ALL MR 1083]; and [3] Girish Vasantrao Bhoyar & Anr. Vs. Nimbaji Warluji Bambal, 2009(4) ALL MR 761, wherein the learned Single Judges of this Court held that the appointment of Court Commissioner in cases of boundary disputes and dispute about identity of land, was permissible.

5. Since the controversy centres around Rule 9 of Order 26, it would be appropriate to extract the said provision. It reads thus:

"9. Commissioner to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

6. Having heard learned Counsel for the parties and on perusal of the material on record and the aforementioned provision, in my view the matter warrants interference. The stage at which the application is filed by respondent No.2, would assume significance. It is an admitted position that evidence is already recorded in the suit and written arguments have also been filed by the parties. In these circumstances, the possibility of filing such an application to fill up certain lacunae, which are left out in the evidence, cannot be ruled out. Possibly, a cue may have been taken from the written arguments that has been filed by the petitioner in the suit and realizing that he may be on a sticky wicket, is what may have prompted the respondent