IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL (L) NO.95 OF 2008 (L) NO.95 OF 2008 (L) NO.95 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.166 OF 2004 OF MOTION NO.166 OF 2004 OF MOTION NO.166 OF 2004 IN IN IN SUIT SUIT SUIT NO.100 OF 2004 NO.100 OF 2004 NO.100 OF 2004 Maxie J. Cabral ..Appellant (Org.plaintiff) V/s. M/s. Chauhan & Associates & Ors. ..Respondents (Org.defendants) ....... Mr. G.S. Godbole i/by Sameer Bhalekar for the appellant Mr. D.H. Mehta for respondent No.1 Mr. K.N. Gaikwad for respondent No.2 ....... CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE : 13TH OCTOBER, 2008 : 13TH OCTOBER, 2008 : 13TH OCTOBER, 2008 P.C.: 1. The appellant-original plaintiff has challenged in this appeal, order dated 19.01.2007 passed by learned Single Judge in Notice of Motion No.166 of 2004 disposing of the notice of motion. Material prayers of the notice of motion are as under:- "(a) that pending the hearing and final disposal of the suit, and pending survey to be conducted through the Municipal Survey Officer, the 1st defendant be further restrained from carrying out any further activities on the portion of the property and further encroached upon and continuing to encroach upon the property of the : 2 : plaintiff along the western boundary line and also plot No.2 (b) that pending the hearing and final disposal of the suit, and pending survey to be conducted through the Municipal Survey Officer, the 1st defendant be restrained from carrying out construction on the encroached area of 400 Sq.Ft. approx. computation of FSI on Final Plot No.458A. (b1) that pending the hearing and final disposal of the suit, this Hon’ble Court may be pleased to appoint an officer of this Hon’ble Court to act as a Commissioner to find out the extent of the encroachment and tresspass committed by the 1st and 2nd defendants; (c) that pending the hearing and final disposal of the suit the 3rd defendant be ordered and directed to demarcate the said plots Nos.1 and 2 more particularly described in the Schedule, Exh.B1 to the plaint; 2. It appears that against order dated 6.5.2004 passed by learned Single Judge in this notice of motion, the respondent had carried an appeal being Appeal No.681 of 2004. On 9.3.2005 the said appeal was disposed of by Division Bench of this Court by appointing Mr. Sam Rao, Architect to get the plots in question surveyed. Mr. Sam Rao was directed to submit his report in this Court. Notice of Motion No.166 of 2004 was directed to be placed for hearing, fifteen days after the receipt of report of Mr. Sam Rao. 3. Accordingly, report dated 4.10.2005 was : 3 : submitted to this Court. Thereafter, the motion was placed before learned Single Judge as directed. The appellant submitted his objections dated 12.12.2006 to the report. The appellant then submitted second objections dated 13.12.2006 to the report. Respondent filed his reply dated 4.1.2007. Learned Single Judge by the impugned order accepted the report. He observed that the Commissioner has submitted that there is no encroachment made by defendant No.1 on the land of the plaintiff and at this prima facie stage, the Court will have to go by the report submitted by the Commissioner. Learned Single Judge accepted the statement made by learned counsel for the defendant that he has completed the construction as per the sanctioned plan. He observed that, therefore, there is no question of granting temporary injunction in terms of prayer clause (a). He further observed that in view of the report of the Commissioner that there is no encroachment made, there is no question of granting any order in terms of prayer clause (b). So far as prayer clause (b)(i) is concerned, learned Single Judge observed that since the Commissioner has already been appointed and he has submitted his report, there is no question of granting that prayer. : 4 : 4. We have heard Mr. Godbole, learned Counsel appearing for the appellant. Mr. Godbole submitted that the impugned order does not indicate that learned Single Judge has considered objections filed by the appellant. He submitted that it was not open to the learned Single Judge to accept the Commissioner’s report without considering the objections filed by the respondent. Mr. Mehta, learned Counsel for the respondent submitted that learned Single Judge had heard learned Counsel for both the sides. He has said so in the impugned order. Consideration of objections is therefore implicit in the impugned order. 5. In our opinion, Mr. Godbole is justified in making a grievance that objections filed by the appellant were not considered. If the objections were considered as to why they were not accepted ought to have been stated in the order. The order must reflect consideration of objections. We are, therefore, of the opinion that impugned order must be set aside. The matter must be remanded to learned Single Judge so that whether there is any encroachment or not can be considered in the light of the Commissioner’s report, the objections filed by the appellant and reply filed by the respondent. : 5 : 6. Hence, the following order :- . The impugned order is set aside. . Notice of Motion is remanded to learned Single Judge, so that it can be heard afresh in the light of Commissioner’s report, objections of the appellant and the reply of the respondent. We make it clear that as regards merits of the case, we have not expressed any opinion and all contentions of both sides are kept open. . Appeal is disposed of accordingly. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE