1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10728 OF 2010 Kantilal s/o. Bhikaji @ Bhiku Shedale ....Petitioner. Versus Bhima s/o. Bhikaji @ Bhiku Shedale ....Respondent. Mr. R.R. Karpe, Advocate for petitioner. Mr. A.K. Gawali, Advocate for respondent. CORAM: B.P. DHARMADHIKARI, J. DATED: 24th February, 2011. PER COURT : 1. Heard Advocate Shri. Karpe for the petitioner and Advocate Shri. Gawali for the respondent. 2. In the suit for declaration about existence of road filed in the year 2008 an application for grant of temporary injunction at Exh. 5 is still not decided. Petitioner/plaintiff complained that on 25-5-2008, taking advantage of summer vacation, the way in dispute was destroyed/ ploughed by the respondent/defendant. He therefore sought appointment of Court Commissioner under Order 26, Rule 9 of Civil Procedure Code. That application has been rejected by the Trial Court after noticing that the alleged destruction did not form part of pleadings. 3. Shri. Karpe has contended that on account of subsequent event 2 and due to urgency, the application was moved, as appointment of Court Commissioner immediately would have brought on record the recent destruction/ploughing of the way in the dispute. According to Shri. Gavali, there was no existence of such way. Hence, there is no question of destruction of such way. Respondent has put this stand before the Trial Court since beginning and hence, Trial Court has correctly exercised its jurisdiction. He further points out that the application at Exh. 5 for temporary injunction is pending almost for about 3 years without any orders. 4. In this situation, I find that interest of justice will met with by permitting the petitioner to move appropriate application for amendment of his plaint to bring on record the subsequent events. After such subsequent events come on record and parties put necessary pleadings in that connection before the Trial Court, liberty to petitioner to move fresh application under Order 26, Rule 9 of C.P.C., if he is so advised. If such application is moved, Trial Court shall consider the same on its own merits and uninfluenced by impugned order. 5. With these directions, the petition is disposed of. No costs. [ B.P. DHARMADHIKARI, J.] ssc/wp10728.10