1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2375 OF 2009 Vinayak Shankarrao Pingale & Anr. ...Petitioners vs. Kantabai Goophane & Ors. ...Respondents Mr.Sandeep Phatak for the petitioners Mr.Shriram Kulkarni for respondent no.2 CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 P.C. 1 Heard the learned counsel for the petitioners. The petitioners who are original 1st and 3rd defendants have invoked extra ordinary jurisdiction of this court for challenging the order of the trial court by which a survey officer under the Maharashtra Land Revenue Code, 1966 was appointed as the court commissioner in exercise of power under rule 9 of Order XXVI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). When this petition was heard on 12th March 2009 for admission, this court has passed the following order : 1 Heard Counsel for the Petitioners. 2 Although I am in agreement with the opinion recorded by the Trial court that to ascertain the encroachment, it is necessary to appoint City Survey Officer as Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, however, in the present case, it is 2 noticed that the earlier application filed for the same relief (Exhibit 37) was disposed of as not pressed. No liberty was given for taking out fresh application for similar relief. This is the only argument on which I am inclined to consider the grievance of the petitioners. 3 Reliance placed by the petitioners to substantiate the former contention on the decision of our High Court in the case of Sanjay Namdeo V. Sahebrao Kachru reported in 2001 (2) Mh.L.J. 939 is inapposite. In that case, Court Commissioner was appointed to report regarding actual possession of the suit field. Obviously, it was not a case of appointment of City Survey Officer so as to have joint measurement of both the adjacent land. 4. Issue notice, returnable on 9th April 2009. 5. In addition, Petitioners to serve the respondents by Advocate s notice, either personally or by speed post/e-mail/fax and file an affidavit of service before the returnable date, failing which writ petition to stand dismissed for non- prosecution without further reference to the court. 6. Stay of operation of the impugned order till 9th April 2009. 2 This court has made it very clear that the only grievance which will be considered in this writ petition as regards the impugned order is that the earlier 3 application was made by the respondents-original plaintiffs for the same relief was not pressed and therefore, the second application for the same relief was not maintainable. 3 The learned counsel for the petitioner has placed reliance on the decision of the Apex Court in case Ranen Roy vs. Prakash Mitra [(1998) 9 SCC 689]. He has also placed reliance on the decision of the Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal,M.P.,Gwalior and others [(1987 1 SCC page 5). He submitted that the earlier application for the same relief was not pressed by the original plaintiffs and they have not obtained any liberty from the court to file a fresh application. He, therefore, submitted that the second application was not maintainable and the impugned order is illegal. 4 I have considered the submissions. The suit filed by the original plaintiffs is for removal of encroachment. The description of the suit property has been set out in paragraph 1 of the plaint and the plan showing alleged encroachment has been annexed to the plaint. Written statement was filed by the present petitioners for contesting the suit. By the impugned order, the survey officer has been appointed as the court commissioner for carrying out the joint measurement of 4 final plot nos.420 and 363 and to draw a map after carrying out measurements showing encroachment, if any. A consistent view taken by this court is that in a suit of such nature where essentially the dispute is as regards boundary between the two properties, the court is required to appoint a survey officer as a Court Commissioner who is competent to determine the boundary between the adjoining properties. It is true that the earlier application made by the plaintiffs was not pressed by them. 5 Under Rule 9 of Order XXVI of the said Code, the court can appoint the court commissioner for local investigation. The said power can be exercised by the court even suo motu. The power has to be exercised if the court deems the local investigation necessary. In the present case, the dispute is regarding encroachment. In view of the decisions which are referred to in the impugned order, the trial court deemed it necessary to appoint a survey officer for carrying out commission work. Even assuming that earlier application made by the plaintiffs was rejected by the trial court, the said court was not powerless to exercise the said power of appointing the court commissioner. In the case of Sarguja Transport Service (supra), the issue before the Apex Court was whether the withdrawal or abandonment of a writ petition under Article 226 and 227 of the 5 Constitution of India without permission to file a fresh petition would bar such a fresh petition. The issue before the Apex Court in case Ranen Roy (supra) was whether the objections filed by the tenant to the warrant of possession issued at the instance of the landlords can be entertained when earlier objection raised by the tenant was withdrawn unconditionally. 6 In the present case, even assuming that the application made by the petitioner was either withdrawn or not pressed or was rejected, the court was not deprived of the power to appoint the court commissioner. Hence, no case is made out for interference. Writ Petition is rejected. JUDGE