1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. APPEAL AGAINST ORDER NO.125 OF 2008 (PRATIBHA VIJAY BHOPLE & ANR..Vs..PRAVIN DNYANESHWAR CHOPDE) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.S.Doifode, Advocate for appellants. Shri S.V.Sirpurkar, Advocate for Respondent. CORAM : R.C.CHAVAN, J. DATED : JUNE 17, 2009. 1. The appellants, original defendants before the learned Civil Judge Junior Division, Nandura in Regular Civil Suit No.20 of 2001, are aggrieved by the judgment and decree of the learned Ad-hoc District Judge, Khamgaon in Regular Civil Appeal No.21 of 2003 remanding the matter back to the trial Court for appointment of Commissioner and for additional evidence. The learned District Judge directed the trial Court “to appoint Commissioner after considering the submissions referred to in the judgment and then decide the suit afresh”. 2 2. The appellants cannot make out a grievance about this order of remand, since by ground No.25, raised in the memo of appeal before the District Judge, the appellants had themselves sought appointment of Commissioner. Now, since the Commissioner is ordered to be appointed it is obvious that the parties would have to lead additional evidence. The contention of the appellants that since the respondent has already examined one engineer he should be prevented from tendering any further evidence on this point, cannot be accepted. Since, after appointment of the Commissioner, at the instance of the appellant, the matter would be wide open and it would be necessary for the respondent to tender such evidence, as may be required after considering Commissioner’s report and evidence. 3. The learned counsel for the appellants also submitted that the lower Court had failed to consider that the Civil Court has no jurisdiction to decide the question whether or not the construction made by any person is with the permission of the Municipal Council or not. Now, since 3 the plaintiff had made any such prayer for deciding the question whether the construction was as per Municipal Council’s permission or not, there was no occasion for the trial Judge to frame any such issue. The trial was restricted to the question of encroachment and not whether the construction was according to the municipal permission or not. All the same, upon remand and direction to decide the suit afresh the learned Judge would independently consider all the objections and contentions that may be raised by the parties. In view of this, the appeal is dismissed. JUDGE RR.