IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO.3124/2008 Gajanan Verma & anor ..vs.. Sudhakar Deshpande =================================== CORAM : B. P. DHARMADHIKARI, J. DATE: 6.10.2008 Heard Advocate Thakkar for petitioners and Advocate Kalwaghe for respondent. Earlier application for appointment of Commissioner to inspect the spot was rejected on 27.7.2007, that order was not challenged and another application was moved under order 26 rule 9. That application has been granted. Court below has found that when earlier application was moved the construction was not complete and it has further found that though say was called for on 2nd application (Exhibit 35), the say was not given. Advocate Thakkar contends that principles of res-judicata are applicable in two stages of same suit and therefore, second application was not maintainable. Advocate Kalwaghe states that earlier application was under order 39 rule 7 and in changed circumstances the second application was moved. He also placed reliance upon judgment of learned Single Judge of Karnataka High Court [2001 A I H C 4610 – Smt. Lakshidevamma ..vs.. K. Chinna Reddy6 & others] to point out that principles of re-judicata are not strictly applicable to interlocutory order. There is nothing on record to demonstrate that earlier application (Exhibit 31) was under order 39 rule 7. Application was for appointment of court commissioner for inspection of suit property for ascertaining actual position of spot. Purpose of second application under order 26 rule 9 filed vide Exhibit 35 is same. The court below therefore, has not correctly applied its mind and its conclusion that in the face of earlier order, it can pass second order because principles of resjudicata are not applicable, therefore, cannot be accepted. Second order dated 8.4.2008 is therefore, quashed and set aside. The present respondent is however, at liberty to challenge the order dated 27.7.2007 as and when civil suit is finally decided. Rule accordingly. No costs. JUDGE smp.