1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2372 OF 2008 Joneja Profile & Wire Pvt.Ltd. ..Petitioner. V/s. Shriniwas Govind Hage(Rahurikar) & ors. ..Respondents. Mr.U.B.Nighot for petitioner. Mr.Purushottam G. Chavan for Respondent No.1. Mr.R.M.Patne, AGP for Respondent Nos. 2 and 3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Chavan waives notice for Respondent No.1. Mr.Patne, AGP waives notice Respondent Nos.2 and 3. 3. As short question is involved, Petition is taken up for final hearing forthwith by consent. 4. This Writ Petition under article 227 of the Constitution of India takes exception to the order passed by the District Judge-1 and Addl.Sessions Judge, Pune dated 19th December, 2007 in Misc. Civil 2 Appeal No.258 of 2007, whereby the order passed by the trial Court on 27th July, 2007 below Exh. 5 in Regular Civil Suit No.519 of 2007 came to be confirmed. The Trial Court by the said order has restrained the Petitioner/Defendant No.1 to carry on any further construction activities on the disputed plot. Amongst others, the Trial Court has placed reliance on the possession receipt produced by the Plaintiff to show that the disputed plot was given in possession of the Plaintiff. The Appellate Court has more or less reiterated the same position. According to the Petitioner/Defendant No.1, the possession receipt by itself could not be made the basis to decide the controversy brought before the Court. 5. To consider the correctness of the grievance of the Petitioner/defendant No.1 at the interim stage, this Court thought it appropriate to call upon the TILR to undertake measurement and submit report regarding factual position. That report was submitted. However, the Respondent No.1/ Plaintiff made grievance that it was prepared behind his back. For that reason direction was given to the TILR under Order dated 20th January, 2009 to do fresh joint measurement on 30th January, 2009 at 11 a.m. on the site. The order clearly records that the Respondent 3 No.1 shall remain present at the relevant time and no notice for that purpose would be separately served. In the event, the Respondent No.1/Plaintiff were to remain absent, the TILR was free to complete joint measurement procedure and submit fresh report, and in that case the Court would proceed on the assumption that it is one more attempt of the Respondent No.1 to protract the matter. The TILR has submitted fresh report in terms of the said order, which report is dated 31st January, 2009. It has been handed in by the Counsel appearing for the Respondent Nos. 2 and 3. The same is taken on record. Instead of examining the efficacy of this report for the first time in this Court, the appropriate course is to relegate the parties before the Appellate Court, who in turn shall consider the said report and then proceed to record finding on the contentious issues, on the basis of which ultimate order can be passed on its own merits in accordance with the law. 6. The impugned Judgment and Order is therefore, set aside and parties are relegated before the Appellate Court by restoring Appeal being Misc. Civil Appeal No.258 of 2007 to the file of the Appellate Court to be proceeded on the above basis. All questions in the said Appeal are left open to be 4 decided afresh. The parties shall appear before the Appellate Court on 20th February, 2009, who in turn shall proceed to hear the appeal in the light of observations made in this decision and finally dispose of the same on or before 13th March, 2009. 7. In the event, the Appellate Court finds that the Respondent No.1/plaintiff, who is respondent in the said Appeal is not cooperating for early hearing of the appeal, may record that position in the roznama and proceed to pass order in the said appeal, which aspects will be taken into account, if required. 8. According to the Counsel for the Respondent No.1/Plaintiff, he was present on the site on 30th January, 2009 at 11 a.m. and the Petitioner was not present at the relevant time. This grievance will have to be answered in the context of noting made by the TILR in the report dated 31st January 2009, being observation of an independent person and who is incidentally a government official. Even if it were to be found that the Petitioner herein/defendant No.1 was not present, that will make no difference and cannot be basis to question the correctness of this report submitted by the TILR. 5 9. The Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)