1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 4304 OF 2007. Baliram s/o Yeshwant Wadaskar, aged about 50 years, Occupation Cultivation, r/o Antargaon (Bk), Tahsil Korpana, District Chandrapur. ... PETITIONER VERSUS 1. Kisan s/o Yeshwant Wadaskar, aged about 65 years, Occupation Cultivation, r/o Antargaon (Bk), Tahsil Korpana, District Chandrapur. 2. Adarsha Shikshan Prasarak Mandal, Rajura, through its Secretary, Marotrao s/o Kisanrao Bodhe, r/o. Awalpur, Tahsil Korpana, District Chandrapur. 3. Prabhakarrao s/o Bapurao Mamulkar, aged about 58 years, President, Adarsha Shikshan Prasarak Mandal, Rajura, r/o Subai Tahsil Rajura, District Chandrapur. 4. Marotrao s/o Kisanrao Bodhe, aged about 50 years, Secretary, Adarsha Shikshan Prasarak Mandal Rajura, r/o Awalpur Tahsil Korpana, District Chandrapur. ... RESPONDENTS .... Shri Sumit Joshi, Advocate for the petitioner. Shri V.A. Kulkarni, Advocate for the respondent Nos.2 to 4. .... 2 CORAM : B.R. GAVAI, J. DATED : 05TH MARCH, 2008. ORAL JUDGMENT : Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Though duly served with the notice for final disposal, none appears on behalf of the respondent No.1. Shri V.A. Kulkarni, learned Counsel waives notice on behalf of the respondent Nos.2 to 4. 2. By way of present petition, the petitioner challenges the order dated 19th July, 2007 vide which the application filed by the present petitioner for issuing summons to the Government Surveyor and the defendants for examining the witness came to be rejected. 3. The petitioner has filed Regular Civil Suit No. 26/1997 for declaration and injunction claiming therein that the plaintiff is a owner of 1.38 hectare land out of Survey No. 3 111 of Mouza Antargaon Bk. Tq. Korpana. He has also prayed for decree of permanent injunction restraining the defendant Nos.2 to 4 from encroaching or disturbing the possession of the plaintiff. 4. During the pendency of the said suit, an application came to be filed by the present petitioner/plaintiff for issuing sommons to the Government Surveyor and to the defendant No.1. The said application is rejected. Hence, the present petition. 5. Perusal of the impugned order would reveal that while rejecting the application of the present petitioner, the learned trial Court has not considered the merits of the matter. The learned trial Court has observed that the suit is not sustainable in the eyes of law. It is further observed that the suit itself is devoid of merit. I find that such an order at interlocutory stage without considering the submissions of the parties, is totally unsustainable in law. The present petition deserves to be allowed on this short ground. The impugned 4 order dated 19th July, 2007 is quashed and set aside. The learned trial Court is directed to consider the application filed by the present petitioner afresh on its own merit. 6. Rule is accordingly made absolute in aforesaid terms with no order as to costs. JUDGE *rrg.