1 WP ST.19645/11 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION STAMP NO.19645 OF 2011 Shri Nanaji Navanath Nalawa : Petitioner versus Shri Pramod Keshav Kulkarni : Respondent. Mrs.Geeta Mulekar for the Petitioner Mr.Nitin Mulye for the Respondent. CORAM:- R M SAVANT, J DATED :- OCTOBER 07, 2011. P.C. 1 The above Petition filed under Article 227 of the Constitution of India takes exception to the order dated 8-6-2011 passed on Exhibit-63 and the order dated 8-6-2011 passed on Exhibit-60 by the Learned Civil Judge, Junior Division (Municipal), Solapur. In so far as order dated 8-6-2011 on Exhibit-63 is concerned, in view of the controversy involved in the suit filed by the Respondent herein, the trial Court was pleased to appoint City Survey Officer, Solapur as a Court Commissioner and he is directed to measure the plots of the Plaintiff and Defendant simultaneously which is mentioned in the proceeding and submit his detailed report along with map on or before one month from the date of plaintiff depositing the 2 WP ST.19645/11 commission fee. In so far as order dated 8-6-2011 on Exhibit 60 is concerned, the trial Court directed the Court Commissioner to find out exact location of the septic tank of the plaintiff’s toilet, if any over the properties of plaintiff and defendant mentioned in the proceeding and submit his detail report. 2 In so far as order passed on Exhibit-63 is concerned, the learned counsel for the Petitioner and the learned counsel for the Respondent are ad-idem that the said commission work need to be carried out considering the controversy involved in the suit. 3 However, in so far as order passed on Exhibit-60 is concerned, the learned counsel appearing Petitioner states that once the commission work pursuant to the order passed on Exhibit-63 is carried out, the need for commission work pursuant to the order passed on Exhibit-60 would be obviated as the delineation of the property would then be clear. The said submission of the learned counsel for the Petitioner is countenanced by the learned counsel for the Respondent stating that it would be just and proper, considering the nature of the controversy involved that the commission work as regards finding out the exact 3 WP ST.19645/11 location of the plaintiff’s septic tank need be carried out as only then the things would be clear. 4 It is required to be noted that in the earlier round of litigation , against the order passed by the trial Court appointing the Court Commissioner, the Respondent herein had filed Writ Petition No.5932/06 which came to be dismissed by a learned Single Judge of this Court by an order dated 29/01/2007. However, whilst dismissing the said Petition, this Court has observed that after recording of the evidence of the parties to remove any ambiguity in the evidence so as to enable the trial Court to properly appreciate the evidence on record, the Court Commissioner may be appointed, and it would be open for the parties to apply for appointment of Court Commissioner. 5 Having heard the learned counsel for the parties, in my view, considering the nature of the controversy involved, it would be just and proper that the commission work pursuant to the order passed on Exhibit-60 is required to be carried out as the things would then become clear regarding the location of the septic tank of the plaintiff-respondent. The learned counsel for the Petitioner has drawn my attention to the photographs annexed at page 32 of the paper book which inter alia 4 WP ST.19645/11 disclose that the compound of the Plaintiff has been tiled. Therefore if the Commission work entails digging up of the plaintiff’s compound, the plaintiff would then have to be compensated for restoring the compound. The Respondent is therefore directed to deposit an amount of Rs.10,000/- towards expenses that would be incurred in the event the compound is required to be dug up to find the exact location of the septic tank. The Respondent to deposit the said amount within a period of four weeks from date. It is only on deposit of the said amount as also the fees of the Commissioner that the commission work as directed under the orders passed on Exhibit-63 and Exhibit-60 would be commenced. If the amount of Rs.10,000/- as directed by the instant order is not deposited by the Respondent within the time stipulated in this order, the commission work under order passed on Exhibit 60 would then not be carried out. It is made clear that in event the expenses for restoration of compound exceeds Rs.10,000/-, the Plaintiff would be at liberty to file an application before the trial Court for recovery of the exact expenses of the restoration work. In the event the said application is filed, the trial Court would consider the same on its own merits. The amount of Rs.10,000/- would be disbursed by the trial Court on the application filed by the Plaintiff with appropriate evidence that would be produced by the plaintiff of having expended the said amounts. Needless to state that the commission work to be carried 5 WP ST.19645/11 out in the presence of both the parties. With the aforesaid observations, the Writ Petition is disposed of. (R M SAVANT, J)