1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4743/2007 Jagdish Raojibhai Kothari & Ors. ..vs.. Smt. Sunderbai Lakhanlal Lakhate & Ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: R. V. MORE, J. DATED : 4 th April, 2008 1. Heard Mr. Purohit, learned counsel for the petitioners and Mr. Gandhi, learned counsel for respondent Nos. 1-(a), 2 and 3. 2. By the impugned order, the learned 5th Jt. Civil Judge (Jr. Dn.), Nagpur allowed respondents' application at Exh.-114 thereby the Civil Engineer of the Nagpur Municipal Corporation is appointed as Court Commissioner for local investigation and joint measurements of the properties of the plaintiffs and defendants and disputed site. 3. Mr. Purohit, learned counsel for the petitioners, submitted that it is the petitioners' suit for declaration and injunction. Earlier the respondents filed suit being Suit 2 No.1336/1991 for declaration and mandatory injunction against the present petitioners and the suit properties are one and the same but the same was dismissed and the decree was confirmed by the lower appellate Court. He further submitted that in the present suit also the respondents filed counter claim. That counter claim was also dismissed on the preliminary objection of maintainability raised by the petitioner. Therefore, the application for appointment of Commissioner is pressed and the impugned order is passed. He further submitted that the earlier decision in the respondents' suit will operate as res judicata and allowing the respondents to apply for appointment of Commissioner means allowing them to abuse the process of law. He also invited my attention to the operative part of impugned order and submitted that in view of clauses 6, 7 and 8 of the operative order it is clear that the Commissioner is appointed for collecting the evidence. 3 4. Mr. Gandhi, learned counsel for the respondents, on the contrary submitted that he has no objection if clauses 6, 7 and 8 of the operative part of the impugned order are quashed and set aside. 5. So far as the submission of Mr. Purohit, learned counsel for the petitioners that the respondents' earlier suit against the petitioners came to be dismissed is concerned, I do not find any merit inasmuch as the respondents' counter claim is already held not maintainable on the basis of the petitioners' objection. The fact remains that the respondents are defendants in the petitioners' suit filed for declaration and injunction and in that capacity they can file present application. The Code of Civil Procedure does not prohibit defendant from filing application under Order XXVI Rule 9 and 10 of the Code of Civil Procedure. 6. The next contention of Mr. Purohit, learned counsel for the petitioners that perusal of clauses 6, 7 and 8 of the operative part of the impugned order will make it 4 clear that the Commissioner is appointed for the purpose of collecting the evidence is concerned, Mr. Gandhi, learned counsel for the respondents has already given no objection for quashing and setting aside these clauses of the operative part of the impugned order. 7. In view of above concession given by Mr. Gandhi, learned counsel for the respondents, I dispose of the petition by passing the following order:- (a) Clause Nos. 6, 7 and 8 of the operative part of the impugned order dated 24.09.2007 passed by 5th Jt. Civil Judge (Jr. Dn.) Nagpur are hereby quashed and set aside. Rest of the order is confirmed. (b) The petition stands disposed of with no order as to costs. JUDGE kahale