ORDER : 1. By preferring this petition, petitioners have challenged the order passed below Exh.60 in Regular Civil Suit No.289 of 2011 dated 04.02.2015 by learned 7th Additional Senior Civil Judge, Jamnagar. 2. Short facts of present case may be summarized as under: 2.1 As per the contents of the petition, petitioners and respondent nos.1 to 3 are neighbours and respondent nos.1 to 3 are owners of land bearing Survey No.186, Sheet No.8, Soni Fali, Opp. Satyanarayan Temple, Jamnagar. Petitioners are the owners and residing at premises, which is on the southern side and adjacent to the land owned by respondent nos.1 to 3. As per the case of the respondent nos.1 to 3, without obtaining any permission, petitioners started unauthorized constructions on their premises and causing damage. As per their contentions, petitioners illegally encroached upon the common compound. They approached respondent no.4 - Municipal Corporation on 26.07.2011. However, no action was taken against the petitioners, and therefore, they have filed Regular Civil Suit No.289 of 2011 on 12.09.2011 before learned 7th Additional Senior Civil Judge, Jamnagar for declaration, mandatory and permanent injunction against the petitioners and respondent nos.4 and 5 herein. Along with the suit, an application below Exh.8 for appointment of Court Commissioner for carrying out panchnama and sketch of the disputed premises was preferred by respondent nos.1 to 3 i.e. original plaintiffs which was granted and panchnama was carried out as well as sketch/map of the disputed premises after issuing notice to the petitioners. That the petitioners filed their detailed reply vide Exh.31 to the plaint and interim injunction application raising several contentions, including the contention that there was no unauthorized construction or encroachment made by the present petitioners. They also produced a copy of sanad as well as photographs of the premises owned by them vide list Exh.34. The Trial Court framed the issues below Exh.50 on 26.08.2014. After a period of three years from filing of the suit, preparation of the panchnama and rough sketch/map by the Court Commissioner, at a stage of evidence of the plaintiffs, respondent nos.1 to 3 again preferred another application below Exh.60 on 05.11.2014 on the basis of same facts seeking appointment of City Survey or Circle Officer as Court Commissioner to make local investigation, to carry out panchnama, prepare sketch and to make report before the Trial Court. Again, written objections were filed by the present petitioners below Exh.61 on 26.11.2014 against the application below Exh.60 contending that attempt on the part of the respondent nos.1 to 3 was to create and collect evidence which was impermissible as against the scope and object of provisions of Order 26 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC” for short). It was also pointed out that sanad of the premises owned by the petitioners and respondent nos.1 to 3 contains rough sketch and measurement of the disputed premises was placed on record and it was open for the parties to the suit to call for production of Government records and examination of Government officers as witnesses. The learned Trial Court vide order dated 04.02.2015 allowed the application below Exh.60 preferred by original plaintiffs. Upon request being made by the petitioners below Exh.66, the Trial Court was pleased to stay the implementation and execution of the order passed below Exh.60 till 23.03.2015 vide order dated 20.02.2015 so as to enable the petitioners to challenge the same before this Court. Hence, this petition. 3. Heard learned advocate for the petitioners and learned advocate for respondent nos.4 and 5. Mr.Devang R. Bhatt, learned advocate is requested to appear on behalf of respondent no.4 and shall take necessary instructions from respondent no.4. Cause-list shows that respondent nos.1, 2 and 3 are expired. 4. Learned advocate for the petitioners has submitted that findings of the Trial Court while passing the order passed below Exh.60 are erroneous and misconception of law and facts. It is further submitted that Trial Court failed to consider the fact that for creating or collecting new evidence in respect of the subject premises, application of the plaintiffs cannot be entertained and can be permitted to file after a period of more than three years at the stage of evidence on the same facts for which earlier panchnama and map were prepared by the duly appointed Court Commissioner. It is further submitted that in the present case, sanad of premises owned by the petitioners and respondent nos.1 to 3 which contains rough sketch and measurement of the disputed premises were already on record and it was open for the parties to call for production of relevant Government records and examination of Government officers as witnesses. It is further submitted that in the present case, sanad of premises owned by the petitioners and respondent nos.1 to 3 which contains rough sketch and measurement of the disputed premises were already on record and it was open for the parties to call for production of relevant Government records and examination of Government officers as witnesses. It is further submitted that it was an attempt on the part of the plaintiffs to create and collect evidence which was impermissible under Order 26 Rule 9 of the CPC and contrary to the settled legal principles enunciated by the Hon’ble Apex Court as well as by this Court. It is further submitted that the application Exh.60 was filed by the plaintiffs with a view to collect evidence through Court and not to bring correct facts before the Trial Court for the purpose of enabling the Trial Court to determine the real question in dispute between the parties. In support of his arguments, learned advocate for the petitioners has relied upon the judgment of this Court in Lilaben Mangubhai Nayak and another Vs. Ramrati Murlidhar Trpathi (Special Civil Application 17998 of 2014, decided on 18.12.2014). Hence, as per the submissions made by learned advocate for the petitioners that impugned order passed below Exh.60 is erroneous and contrary to the settled principles of law, he has requested to quash and set aside the impugned order by allowing this petition. 5. From the other side, learned advocate for respondent nos.4 and 5 has supported the findings arrived at by the Trial Court below the order Exh.60 and submitted that there was no bar for the Civil Court to pass the order for appointment of the Court Commissioner twice. It is further submitted that encroachment in the disputed land was made by the present petitioners, and therefore, to determine the real issue pending between the parties, it was necessary to place on record the correct facts and therefore, order of the Trial Court passed below Exh.60 cannot be said to be illegal and erroneous. It is further submitted that the previous panchnama and sketch/map prepared by the Court Commissioner does not create the real situation of the disputed property, and therefore, it was necessary on the part of the Court to determine the real issue pending between the parties. It is further submitted that there was no question of create any evidence. It is further submitted that the previous panchnama and sketch/map prepared by the Court Commissioner does not create the real situation of the disputed property, and therefore, it was necessary on the part of the Court to determine the real issue pending between the parties. It is further submitted that there was no question of create any evidence. Learned advocate appearing for the respondents has supported the findings arrived at by the Trial Court and has requested to dismiss this petition. 6. Having heard learned advocates for the respective parties and perused the material on record, it appears that Regular Civil Suit No.289 of 2011 was preferred by the respondent nos.1 to 3 – original plaintiffs against the petitioners and respondent nos.4 and 5 for declaration and permanent injunction before the learned Principal Senior Civil Judge, Jamnagar on 07.09.2011. Along with the suit, plaintiffs preferred one application for preparing the panchnama and appointment of the Court Commissioner vide Exh.8 alleging that the defendant had destroyed the wall on the upper floor in the premises of the plaintiffs. It is further alleged that the encroachment was made by the defendant in a Ravli Fali and construction was made as well as on the first floor and second floor. There was demolition of the waterline, sewerage line, and electric connection by the defendant and therefore, he requested to appoint the Court Commissioner by the Court. The Trial Court, at the relevant point of time, was pleased to allow the application by appointing the Court Commissioner directing to prepare panchnama of the disputed land. It appears that the Court Commissioner prepared the panchnama as well as the map, as directed by the Court. It appears from the record that on 05.11.2014, second application was made by the plaintiffs before the Trial Court stating that in a common fali, encroachment was made by the defendant and prevalent situation of the disputed property was required to be placed on record, and therefore, officer of the City Survey or Circle Officer may be appointed as Court Commissioner. It was further requested that against the front portion of the defendant, panchnama was required to be carried out by the Court Commissioner. The said application was objected by the present petitioners by filing their reply vide Exh.61 contending that photographs were produced by the plaintiffs vide Mark 30/1 and 30/12 and present suit was filed on 09.09.2011. It was further requested that against the front portion of the defendant, panchnama was required to be carried out by the Court Commissioner. The said application was objected by the present petitioners by filing their reply vide Exh.61 contending that photographs were produced by the plaintiffs vide Mark 30/1 and 30/12 and present suit was filed on 09.09.2011. There was no justification shown by the plaintiffs in respect of delay in filing the application. It is further contended that the Court Commissioner has already prepared the panchana and submitted a report vide Exh.19 along with rough sketch and therefore, there was no question to prepare panchnama second time. The Trial Court, after hearing the parties, was pleased to allow the application vide order dated 04.02.2015. Previous panchnama prepared by the Court Commissioner was at Exh.19 and there was no clear situation of the disputed property at the relevant point of time. Prayer made by the original plaintiffs in their application Exh.8 and subsequent prayer in their application Exh.60 was quite different. Under Order 26 Rule 9 of the CPC, if 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. There is no bar to appoint a Court Commissioner twice. Satisfaction of the Court is the only criteria for granting or disallowing the prayer made by the private parties for appointment of the Court Commissioner. 7. Considering the peculiar facts of the case, second application Exh.60 preferred by the plaintiffs was rightly granted by the Court-below. According to this Court, there was no error in allowing the application preferred by the plaintiffs at Exh.60 appointing Court Commissioner. In a case of Special Civil Application No.17998 of 2014, the Court Commissioner appointed by the Court-below on a second occasion was held illegal by this Court. Facts of each case would require to be considered by the Court while deciding such an issue. In a case of Special Civil Application No.17998 of 2014, the Court Commissioner appointed by the Court-below on a second occasion was held illegal by this Court. Facts of each case would require to be considered by the Court while deciding such an issue. Facts in the cited case was quite different than the facts of the present case and therefore, the judgment relied upon by learned advocate for the petitioners would not be helpful to the petitioners. 8. In view of the aforesaid observations, present petition deserves to be dismissed and accordingly the same is dismissed. Notice is discharged.