-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8399 OF 200 WRIT PETITION NO.8399 OF 200 WRIT PETITION NO.8399 OF 2007 Shri Naren Vasudevrao Jadhav & ors Petitioners Vs Shri Dharmesh Ganpat Pote & ors Respondents. Mr D.N.Salvi, for the petitioners. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 06.02.08. DATE : 06.02.08. DATE : 06.02.08. PC: PC: PC: 1. Heard learned counsel for the petitioners. 2. This writ petition is directed against an order dated 12.3.2007, by which the petitioners’ application for appointment of court commissioner filed under Order XXVI Rule 9 of the Code of Civil Procedure has been rejected. While rejecting the application the Court has reocrded in the impugned order that the suit is not based on the allegation of encroachment and, therefore, the appointment -2- of court commissioner is not necessary. The impugned order was passed on 12.3.2007, almost a year has passed thereafter. Mr.Salvi, learned counsel for the petitioners, invited my attention to the application of the petitioners seeking appointment of court commissioner stating that the application was filed not only to ascertain the encroachment, if any, but it was also to ascertain as to what damage is caused to the petitioners’ structure due to the blast conducted by the respondents. From the impugned order, it appears that the court has not considered this aspect. However, I am not inclined to allow the application for appointment of court commissioner for this purpose and the appropriate course would be to grant liberty to the petitioners to make a fresh application. Hence, I pass the following order. . This writ petition is dismissed. It is open for the petitioners to file a fresh application under Order XXVI Rule 9 of CPC for appointment of court commissioner to ascertain as to whether any damage is caused to the petitioners’ building due to the blast conducted by the respondents in their property. If such an application is filed, the trial court shall consider it on merits in accordance with law. While granting liberty to file fresh application I shall not be understood to have examined the -3- contention in respect of the damage being caused to the petitioners’ building and the court shall consider the application without being influenced by the liberty granted by this court. The writ petition is disposed of. (D.B.Bhosale,J.) (D.B.Bhosale,J.) (D.B.Bhosale,J.)