1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4482 OF 2008 (Kawdeshwar Rodba Bobde vs. Bhaskar Anandrao Pise ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DECEMBER 16, 2008. Heard finally Shri Tambde, learned counsel for the petitioner and Shri A.N. Ansari, Advocate holding for Shri Dangre, learned counsel for the respondent. The petitioner – plaintiff filed suit for removal of encroachment and in it mentioned area of encroachment as 120 sq. feet. The Commissioner was appointed by the Court and the report of the Commissioner dated 18.8.2005 mentions the extent of encroachment on the petitioner's – plaintiff's land to be 12.9 sq. mtrs. In view of this the petitioner's – plaintiff's moved application for amendment to incorporate the fact that encroachment was on 12.9 sq. mtrs. and to seek possession of said area, that application has been rejected. Shri Tambde, learned counsel states that the nature of suit does not undergo any change and as exact extent of encroachment became known 2 only after measurement by the Court Commissioner, amendment was sought for. Shri A.N. Ansari, Advocate holding for Shri Dangre, learned counsel for the respondent argues that burden was upon the petitioner – plaintiff to give specific area while filing suit. He further states that report of the Commissioner is not correct and it has already been objected to and as such reliance upon it, for the purposes of amendment, will not be proper. He points out that report is given in 2005 and application has been moved belatedly i. e. three years thereafter. After hearing both the counsel, I find that as yet the recording of evidence has not begun. It is no doubt true that the burden was upon the petitioner to show that on what basis he mentioned the extent of encroachment in his plaint, but by permitting the amendment, right to cross examine the petitioner is not lost to the present respondent. The Commissioner has reported that the encroachment is on 12.9 sq. mtrs. i.e. roughly about 135 sq. ft. Considering the small difference in the area pleaded in the plaint and in the area of encroachment as mentioned by the Commissioner, I am inclined to permit the petitioner – plaintiff, to amend as prayed, subject to above right to the 3 respondent. Accordingly, the impugned order dated 30.7.2008 passed below Exh. 19 is hereby quashed and set aside. The petitioner/ plaintiff is permitted to amend his plaint subject to payment of cost of Rs.500/- to present respondent before the trial Court by 15.1.2009. The cost be paid and amendment be carried out by 15.1.2009. Liberty to the present respondent to carry out consequential amendment, if any, by 30.1.2009. The proceedings in Regular Civil Suit No. 91 of 2004 are expedited and the Court below is directed to decide the suit as early as possible and in any case by 31.12.2009. Writ Petition is disposed of. Rule accordingly. JUDGE *GS.