1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : N A G P U R. WRIT PETITION NO. 1801 OF 2008 Vilas Bapurao Gawande v. Bhimrao Sahebrao Shinde .... Mr.Sandip D. Chopde Advocate for Petitioner. Ms. F.N. Haidari Advocate for Respondent. .... CORAM : A.B. CHAUDHARI, J. DATED : 04.08.2008. COURT'S ORDER : This petition is directed against the order 19.3.2008 made by the trial Court rejecting application (Ex.71) for re-measurement. The learned counsel for the petitioner argued that after the remand by the appellate court, the Court Commissioner namely T.I.L.R. did not measure the plots on the basis of permanent mark and by not doing so correct picture is not before the court. 2 According to the petitioner, the T.I.L.R. measured only one plot. He placed reliance on 1994 Mh.L.J. 664- Tajmul Hussain Mulla Mumtaz Hussain v. Satish Bhanudas Chavan. 2. Per contra, Ms.Haidari, learned counsel for respondent argued that the petitioner cannot be said to be diligent inasmuch as at the time of taking measurements he did not say a word nor took any objection. Thereafter when the report was filed, the same was never objected to and this state of affairs continued till it was examined by the Court. Now allowing such a prayer would amount to filling of lacuna 3. Having heard the learned counsel for the rival parties, I find that the suit is of the year 2003. The petitioner/plaintiff in the first place ought to have himself got measured the land in the present suit. In fact, the Bombay amendment to Order VII Rule 3, Code of Civil Procedure, effective from 1.10.1983 clearly provides - 3 "3. Where the subject-matter of the suit is immovable property .- where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed along with the plaint." The petitioner was bound to comply with this provision at the time of institution of the suit. That apart, the plaintiff could have before such evidence got the property measured through Government agency. The plaintiff will have to prove his case himself and was not prohibited from bringing his own evidence. Similarly, the plaintiff/ petitioner did not at all object to the measurements when they were being taken on the spot by the T.I.L.R. He also 4 kept quiet when the report was submitted and did not raise any objection to the said report. Thereafter the Commissioner was examined in the Court and at that time also he kept quiet. Thus, the petitioner/plaintiff cannot be given advantage of his own wrong. The suit is unnecessarily being delayed. There is no substance in the petition and the same is rejected. JUDGE /TA/