/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.991 OF 2008 Shri. Kantilal Premji Patel ...Petitioner V/s. Shri.Jagannath Krushnath alias Krushnaji Pingale(since deceased through legal heirs) Smt. Kamal Jagannath Pingale & Ors. ...Respondents Shri.P.S. Dani for Petitioner. Shri.R.G. Ketkar with Shri.R.S. Khadapkar for Respondents. CORAM : V.M. KANADE, J. DATED : 17th APRIL, 2008. P.C.:- 1. Heard learned counsel for the Petitioner and learned counsel for the Respondents. 2. Petitioner is challenging the order passed by the Trial Court dated 18/12/2007 on an application below Ex.78 whereby the Trial Court had directed that said application may be considered by the Court at the time of / 2/ final argument in the case. 3. Brief facts, in nutshell, are that a suit was filed by the Respondents- Plaintiffs against the Petitioner-Defendant for possession of the suit premises on the ground of bonafide requirement, permanent alteration and non-use by the Defendant. An application was filed by the Plaintiffs for appointment of the Court Commissioner to inspect the suit premises. This application was allowed. Thereafter, the Defendant filed an application for appointment of the Court Commissioner for inspecting other premises mentioned in the said application. This application was also allowed. When the Court Commissioner went to the premises mentioned in the Defendant's application to take inspection, Plaintiffs and their advocate obstructed the Court Commissioner from taking inspection. Therefore, an application was filed by the Defendant to dismiss the suit filed by the Plaintiffs on account of obstruction created by the Plaintiffs. 4. It is an admitted position that an application was taken out by the Defendant for the appointment of the Court Commissioner and the order has become final. The Plaintiffs have not challenged the said order which was passed by the Trial Court. It is also not in dispute that though initially Smt. / 3/ Deepa Wagle was appointed as Court Commissioner, thereafter, by consent Shri. S.M. Rawat was appointed as Court Commissioner. Grievance of the Petitioner-Defendant is that though this order has become final, Plaintiffs chose to obstruct the Court Commissioner from carrying out the inspection and therefore, suit was liable to be dismissed. 5. Learned counsel for the Respondents/Plaintiffs, on the other hand, submitted that by order dated 23/09/2003, the Court Commissioner was directed to take inspection of the suit premises only. In my view, the Trial Court has erred in rejecting the application of the Petitioner. Since the order for appointment of the Court Commissioner has become final, Plaintiffs ought not to have obstructed the Court Commissioner from taking inspection of the premises mentioned in the application of the Petitioner. If the Respondents had any grievance regarding direction given by the Court, they Could have approached the Court for either seeking modification of the order or by challenging the said order by filing an application in this Court. Respondents, however, instead of taking recourse to the aforesaid two remedies, chose to obstruct the Court Commissioner. The Trial Court, therefore, has erred in holding that this aspect can be considered at the time of argument and / 4/ delivery of the judgment. Impugned order is, therefore, set aside. Matter is remanded to the Trial Court. Trial Court to consider the application of the Petitioner on merits and in accordance with law. Liberty is granted to the Respondents to prefer an application for modification, if so advised. The Trial Court shall decide the application as expeditiously as possible and in any case, within a period of four weeks. Petition is allowed in the above terms and disposed of accordingly. ( V.M. KANADE, J.)