The condition of the suit property was deemed inconsequential for deciding the suit, and the request for local inspection was seen as an attempt to collect evidence for contempt proceedings.

JUDGMENT :

MANGESH S. PATIL, J.

1. Heard.

2. Rule. Rule is made returnable forthwith. Learned Advocate Mr. M.J. Patil for the contesting respondent No. 9 waives service. With the consent of both the sides the matter is heard finally at the stage of admission.

3. The petitioner is the original plaintiff impugning the order passed by the trial Court rejecting his application (Exhibit 110) for appointment of Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, for ascertaining the alleged change in the structure of the shed erected on a suit property as described in paragraph No. 3 of the plaint.

4. The learned Advocate for the petitioner submits that it is a suit for general partition. The respondent No. 9 who is defendant No. 9 has illegally purchased the suit property from some of the defendants. The petitioner had succeeded in obtaining an order of temporary injunction on her applications (Exhibit 6 and 57) whereby, inter-alia the respondent No. 9 was restrained from changing or altering the condition of the structure standing on the suit property. In spite of such a direction, respondent No. 9 was indulged in breach of injunction. In order to bring that fact on record, that is regarding the change in the structure standing on the suit property, the request was made for carrying out local inspection. The prayer was innocuous. The petitioner merely wanted to bring on record the change in the structure which could not have been otherwise brought on record except by appointing a Court Commissioner.

5. The learned Advocate would further submit that the whole purpose of exercising the judicial power is to reveal the truth which is a foundation of justice. The trial Court was excepted to be more active when a request was made to appoint a Court Commissioner for carrying out inspection. The learned Advocate would cite the decision in the case of Maria Margarida Sequeria Fernandes and Others vs. Erasmo Jack de Sequeria (Dead) through L.Rs. AIR 2012 SC 1727.

6. Per quantra, the learned Advocate for the respondent No. 9 would submit that since the petitioner is claiming a general partition and there is no dispute as to the identity of the property, there was no reason for carrying out any local inception by appointing a Court Commissioner. If and when the suit would be decreed, the petitioner would be entitled to get her share demarcated and even the executing Court would adjust the equities.

7. He would submit that admittedly the respondent No. 9 has purchased the suit property and the petitioner is impugning the sale deed in his favour. If at all there is some breach as is being alleged, the petitioner has already initiated couple of contempt proceeding and the issue would be decided in those proceedings. By way of the present request, by the application (Exhibit 110), the petitioner is seeking to collect the evidence to suit his allegations so as to enable him to establish the contempt.

8. The learned Advocate further points out the following decisions wherein, according to him, on similar set of facts the High Courts have refused to consider the request for appointment of Court Commissioner:

1. Syed Mushtaque Ahmad vs. Syed Ashique Ali Khan, 2011 (6) Mh. L.J. 334.

2. Smt. Teena Pandey and Another vs. Dr. Kirnesh Pandey Indore, passed by the High Court of Madhya Pradesh Indore Bench in MP No. 2406/2019, dated 08.07.2019.

9. I have carefully gone through the papers. Admittedly, the petitioner has filed the suit for general partition. She is also simultaneously impugning the sale deed of the suit property in favour of the respondent No. 9. Needless to state that if and when the suit would be decreed, all the properties would be divided by metes and bounds including the one which has been purchased by respondent No. 9. The super structure standing on that property in strict sence cannot be said to be a matter in issue or a fact in the dispute. If the petitioner is to succeed, she will certainly get her due share irrespective