( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10468 OF 2010 Madhukar s/o. Ganpat Nagare, Aged : 65 years, Occupation : Pensioner, R/o. Parner, Taluka : Parner, District : Ahmednagar. .. Petitioner. versus 1. Bhanudas s/o. Laxman Ingale, Aged : 62 years, Occupation : Pensioner, R/o. Parner, Taluka : Parner, District : Ahmednagar. 2. Sow. Sulochana Bhanudas Ingale, Aged : 55 years, Occupation : Household, R/o. Parner, Taluka : Parner, District : Ahmednagar. 3. Sanjay s/o. Bhausaheb Bhagat, Aged : 45 years, Occupation : Agriculture, R/o. Ghadnori, Taluka : Parner, District : Ahmednagar. .. Respondents. ....................... ( 2 ) Mr. V.R. Dhorde, Advocate, for the petitioner. Mr. N.K. Tungar, Advocate, for respondent nos.1 to 3. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 19TH JANUARY 2011 COURT'S ORDER : 1. The prayers made by the petitioner / plaintiff under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, were partly granted. The petitioner / plaintiff then sought review of that order and the impugned order dated 17-9-2010 rejects that prayer for review. 2. Mr. V.R. Dhorde, learned Counsel appearing for the petitioner, has attempted to contend that the Commissioner should have been permitted to function as per prayers made in the application under Order XXVI Rule 9 of the Code of Civil Procedure. The fact of encroachment cannot be brought on record until Block Nos. 3554 and 3547 are both measured. He has also invited attention to the map filed at page 73 along with the Writ Petition, to urge how land left for public utility vide Block No. 3547 is located both on northern and southern side of ( 3 ) the layout of the Society. He has further urged that Block No. 3554 allotted to the petitioner is at the top of the central road on the southern side just below Block No. 3547. 3. Mr. N.K. Tungar, learned Counsel appearing for the respondents, has urged that the court commissioner has already carried measurement and report in relation to open spaces required to be left in the layout is already submitted. According to them, measurement of Block No. 3554 was not necessary. 4. Perusal of the plaint shows that the present petitioner claims to be in possession of Block No. 3554 and there is no prayer for removal of any encroachment or for restoration of possession in respect of that block number. Only an injunction to restrain defendants from undertaking any construction work in that block number is sought. The substantial challenge is to use of land Block No. 3547 for private construction by respondents. 5. It is also informed by the learned Counsel for the respondents that the suit is already made time bound. 6. In this situation, I do not find anything wrong with the exercise of review jurisdiction by the trial court in the matter. As recording to evidence has already begun and the matter is time ( 4 ) bound, parties are permitted to lead their evidence before the trial court. If after completion of such evidence, any of the parties find it necessary to have appointment of commissioner again for any purpose or then if trial court finds that there is ambiguity and, therefore, there is necessity of appointment of court commissioner again, trial court can pass appropriate orders. 7. With the aforesaid liberty to the parties, the present petition is not entertained and it is disposed of accordingly. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10468