JUDGMENT :

1. Rule. Rule is made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at the admission stage.

2. Issue that arises for consideration in the present petition is whether a Court Commissioner for measurement of land under the provisions of Section 75 r/w Order 26 Rule 9 of the Code of Civil Procedure, 1908 can be appointed even before a trial in the suit commences or whether such an appointment can be made only after adducing of evidence by both the parties. The issue arises essentially on account of divergence of views expressed by this Court in several of its decisions.

3. The power of Court to appoint Court Commissioner is traceable to Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (‘the Code’) which read thus:

75. Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

Order XXVI Rule 9:- Commissions 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.”

4. Before adverting to the facts of the present case, it would be necessary first state the views taken by this Court in various decisions as both Mr. Kulkarni, the Ld. Counsel for Petitioner as well as Mr. Gandhi, the Ld. Counsel for Respondent Nos. 1 & 2 have relied upon judgments in support of their respective stands.

5. First I proceed to deal with the judgments relied upon by Mr. Kulkarni in which it is held that Court cannot appoint Court Commissioner to collect evidence before parties adduced evidence and that appointment of Court Commissioner can be made only after evidence of both the parties to the suit is recorded:-

(I) In Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and Ors., 2001 (2) Mh.L.J. 959, the Trial Court had appointed Court Commissioner for inspection of the suit property and to submit report regarding actual possession thereof. This Court held that the same would tantamount to Court Commissioner being appointed for collection of evidence regarding possession which is impermissible.

(II) In Ramkrishna Santu Kakad Vs. Reojee Sahadu Kakad & anr., Writ Petition No.2749 of 2012 decided on 04.03.2013, Single Judge of this Court, relying on Sanjay Namdeo Khandare (supra) held that appointment of Court Commissioner on an application made by defendant even before framing of issues was premature. This Court held in paragraph no.5 of the judgment as under:

“5. In that view of the matter, in my opinion, the stage of the proceeding for appointment of the Court Commissioner is pre-mature. It is different matter if the Court starts recording the evidence and finds it difficult to locate the correct position about the questions of controversy involved in the matter and at that stage, by invoking powers u/s 26 Rule 9 of the C.P.C. appoints the Court Commissioner. Therefore, in my opinion, the impugned order can not sustain for the aforestated reasons. Therefore same is quashed and set aside. However, the parties will have liberty to file an application for appointment of the Court Commissioner at appropriate stage of the proceedings. Setting aside the impugned orde