1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.510/2011 SAU PRAVINA LOHKARE ..VS.. SURESH KADBE AND ANOR - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. M.B.Badiye, adv for petitioner Mr A.Y. Kapgate,adv for respondents 1 and 2 CORAM : SMT. VASANTI A. NAIK J. DATE : AUGUST 20, 2011. Heard. By the impugned order dated 15.1.2011 the trial court has rightly rejected the application filed by the petitioner for appointment of Commissioner for local inspection of the new construction made by the respondents as the petitioner had not applied for appointment of Commissioner to measure the land and the houses of both the plaintiffs and the defendant to consider whether the defendant had committed encroachment upon the land of the plaintiffs. Shri Badiye, the learned counsel for the petitioner states that since the prayer clause in the application for appointment of Commissioner is not properly worded, and since in the facts and circumstances of the case it would be necessary to measure the land of both the plaintiff and the defendant before deciding the issue of encroachment, the 2 petitioner may be granted liberty to file fresh application seeking the appropriate relief. Though the trial court was justified in rejecting the application filed by the petitioner by the impugned order dated 15.1.2011, in the facts and circumstances of the case and in the interest of justice, specially because there was some mistake in drafting the application, the petitioner is granted liberty to file a fresh application for seeking the appointment of a Court Commissioner. It would be necessary to refer to the decision reported in AIR 2007 Bombay Page 7 in this regard. In the result the writ petition is disposed of with no order as to costs. However, the petitioner is at liberty to file an appropriate application for appointment of commissioner for measuring the land of the petitioner as well as the respondents. JUDGE SMP