1 wp8041.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8041 of 2010 Shankarrao Mohite Patil ...Petitioner v/s. Mrs. Anupama Vijaukanth Kudale & ors. ...Respondents Ms. Gauri S. Shah for the petitioner. Mr. Atul Kore for respondent no.1. CORAM:- B.R. GAVAI, J. DATED :- FEBRUARY 22 2011. P.C. By way of present Petition, the Petitioners challenges two orders dated 9th August, 2010 below exhibit 125 and exhibit 129 in R.C.S. No. 2/2008. 2. The first order pertains to the rejection of the Application filed by the present Petitioner for directing the Court Commissioner to remeasure the suit site. The second order pertains to the order passed by the learned trial Court allowing the Application filed by the respondent-plaintiff for 2 wp8041.10.sxw amendment of the plaint. 3. Shri Shah, the learned Counsel appearing on behalf of the Petitioners submits that the learned trial Court ought to have taken into consideration that the Court Commissioner has measured the suit site without giving notice to the defendants and, therefore, in the interest of justice, he ought to have allowed the re-measurement. Shri Shah further submits that insofar as the second Application is concerned, since the suit is at the stage of hearing, the learned trial Court ought not to have allowed the said Application. 4. Insofar as first order below exhibit 125 is concerned, the learned trial Court found that the Court Commissioner was appointed at the instance of the petitioner-defendant. It has further been found that the Court Commissioner has himself mentioned in the report that he has recorded the statement of plaintiff and defendant. It has further been observed by the learned trial Court that unless the Court Commissioner was examined, the contention of the present Petitioner that no notices were received, cannot be accepted. It has further been pointed out by the learned trial Court that merely because the Court Commissioner's report is placed on record would 3 wp8041.10.sxw not amount to accepting the said report and the same would be subject to cross-examination of the Court Commissioner. Learned trial Court has further observed that it is for the plaintiffs to establish that defendants have encroached upon the suit site. In that view of the matter, no perversity could be noticed in the said order. 5. Insofar as second order is concerned, undisputedly the report of the Court Commissioner has come after the stage of the commencement of the trial. Since the plaintiff-respondent desires to bring on record the subsequent developments on the basis of the report of the Court Commissioner, no perversity could be noticed in the approach adopted by the learned trial Court in allowing the amendment. Rejected. (B.R. GAVAI, J)