(1) SA. 254.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 254 OF 2007 1] The City Municipal Council, Beed, through it’s President 2] The Chief Officer, City Municipal Council, Beed Tq. and Dist. Beed .. Appellants VERSUS Sunita w/o Subhashchanda Lodha, Age : 35 years, Occu.: Household and Business, R/o Shukrawar Peth, Beed, Tq. and Dist. Beed .. Respondent AND CIVIL APPLICATION NO. 2922 OF 2007 IN SECOND APPEAL NO. 254 OF 2007 The City Municipal Council, Beed through it’s President and anr. .. Applicants VERSUS Sunita w/o Subhashchandra Lodha .. Respondent Mr. G.K. Thigale, Advocate for the appellants-applicants Mr. R.N. Dhorde, Advocate h/f. Mr. R.L. Kute, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 10TH AUGUST, 2009 ORAL ORDER:- 1] On perusal of this Court’s order dated 25.6.2007, it is clear that while the appeal was pending before the lower appellate Court, the lower (2) SA. 254.2007 Appellate Court had directed the DSLR to undertake the measurements and fixation of boundaries etc. as Court commission work, but before the work could be undertaken and the report is taken on record of the lower Appellate Court, the appeal came to be decided. Therefore, this Court directed the DSLR to complete the work of Court commission and submit his report. Accordingly, the report has come on record. 2] The learned Advocate appearing for the respondent rightly pointed out that though the report has come on record, so far, there is no order passed either by this Court or by the lower Appellate Court to admit this report on record. He also pointed out that there is error in the measurement work. He could in fact demonstrate the error to me. 3] Having regard to these developments, I think, despite the opposition of the respondent’s Advocate, I should remand the case back to the lower Appellate Court, where following steps are required to be taken:- [i] The lower appellate Court shall hear the parties and consider the appellants’ request to adduce additional evidence, within the parameters of Order 41 Rule 27 of the Code of Civil Procedure. (3) SA. 254.2007 . [ii] If such application is allowed, the lower appellate Court shall examine the correctness of the report dated 22.8.2007 in the light of the oral evidence that the parties might adduce about the Court Commissioner’s report. Needless to say that the respondent would have liberty to oppose the inclusion of the Court commissioner’s report on record and to dispute it’s correctness and also adduce additional evidence in defence, if any. 4] Second Appeal accordingly, is allowed. The impugned order is set aside. The lower Appellate Court shall decide the appeal in the light of the observations made above. 5] In view of the order passed in Second Appeal no. 254 of 2007, nothing survives in the Civil Application no. 2922 of 2007, seeking stay; the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp