1 wp4055-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 4055 OF 2011 Vitthal Bhimrao Kadam .. Petitioner Versus Vasudev Dhondiba Chandsnshive ... Respondent Mr. Suresl S. Shah for the petitioner Mr. A. A. Joshi for the respondent CORAM : R. Y. GANOO, J. DATED : 20th October, 2011 P.C. 1. The petitioner is a plaintiff in the Court of Civil Senior Division, Panhandler in Regular Civil Suit No. 44 of 2005. The petitioner had, before institution of the suit, conducted survey in respect of the alleged encroachment by the respondent, at the hands of TILR and thereafter, the suit came to be filed. Two witnesses from the office of the TILR were examined. The petitioner, in order to examine the actual person who had carried out the measurement i.e. TILR who had carried out the measurement, applied for issuance of summons. The said summons was granted. Report of Bailiff showed that the said person- TILR had expired. Thereafter, the petitioner has closed his evidence and evidence closure purshis was also filed. 2. In this petition or in the impugned application Exh.118, there is no 2 wp4055-11 date mentioned as to when the evidence closure purshis was filed. Before this Court also, the learned advocate for the petitioner could not point out the said date. It is thereafter the impugned application Exh.118/D was filed for appointment of commissioner to carry out survey. The learned advocate for the petitioner conceded that the application dated 24th March, 2011 (Exh.118- D) was filed after filing the purshis regarding closure of evidence. This application has been rejected by the learned Single Judge, Senior Division, Pandharpur by order dated 7th April, 2011. This order is challenged in this petition. 3. I have heard the learned advocates on both the sides. 4. The learned advocate for the petitioner relied upon the judgment in the case of Haryana Waqf Board Vs. Shanti Sarup and others, reported in (2008) 8 Supreme Court Cases 667. Learned Advocate for the petitioner, upon instructions, made a statement that the map drawn by the TILR enclosed along with the reply is duly exhibited. The learned advocate for the petitioner submits that since the said TILR who carried out the survey is dead, he may find it difficult to make out the case in support of the said map and this how, the petitioner made an application on 24th March, 20011 for appointment of a Commissioner again. 5. I have gone through the impugned judgment. The view taken by the impugned judgment i.e. to say rejection of the application is correct. 6. In my view, once purshis regarding closure of evidence is filed, it was 3 wp4055-11 not open for the petitioner to make an application seeking appointment of commissioner because, the stage of recording of evidence is over. It is to be noted that the said evidence closure purshis was filed by the petitioner and surely, it must have been done with full understanding. In my view, the impugned order passed is finally correct as once the evidence on the side of petitioner was closed, it was not open for the petitioner to call for additional evidence. The reliance placed on the judgment in the case of Harayana Waquf Board (Supra), in my view, is misconceived. 7. In my view, in the present case, the petitioner had opportunity to have the TILR survey done and there is no question that the Court rejected the application. It is true that the said TILR has expired. However, report was obtained at or about the time when the suit was filed i.e. in the year 2005. The survey which is demanded by fresh Commissioner is in the year 2011. Surely, during the span of 6 years, some development may have taken place at site and therefore, if the new Commissioner is appointed he would show the situation prevailing at site at the time of visits in 2011. On the basis of report of 2011 Court can not have decided the suit on the basis of plaint filed in the year 2005. 8. For the aforesaid reasons, the learned Judge was right in rejecting the application. It is clarified that if, on the basis of various provisions of law, the petitioner can rely upon the report which is already exhibited, he is free to do so and advance submissions based on the same. The learned judge shall consider 4 wp4055-11 the relevant provisions of law and make use of the map if found proper. 9. For the aforesaid reasons the petition is dismissed at the stage of admission with aforesaid clarification . There shall be no order as to costs. (R. Y. GANOO, J.)