1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 5061 OF 2011 Sitaram Janku Bhujbal & Others ...Petitioners Versus Shantabai P. Sable & Others ...Respondents Mr.A.V.Anturkar i/b. S.B.Deshmukh for the Petitioner Mr.H.E.Palwe for the Respondent nos.1 to 6 CORAM:- R.Y.GANOO, J. DATED:- 19th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. Learned Advocate Mr.Palve appears on behalf of the respondent nos.1 to 6 who are contesting respondents. 3. The respondents herein filed suit in the Court of Civil Judge Junior 2 Division, Rajguru Nagar, District Pune, being Regular Civil Suit No. 321 of 2010 for relief of specific performance and for injunction, more particularly set out in prayer clause (d) against original defendant nos.1 to 4 and 11 to 13. Exhibit 5 application filed by the respondents came to be granted by order dated 16.3.2011 by the learned Joint Civil Judge, Junior Division, Rajguru Nagar, Pune, against which the present petitioners filed an appeal being Misc. Civil Appeal No.103 of 2011. The learned District Judge 12 and Assistant Sessions Judge, Pune, in the aforesaid Misc. Civil Appeal, passed Order dated 2.5.2011 and confirmed the order passed below Exhibit 5. 4. Before this Court, learned Advocate Mr. Anturkar, appearing on behalf of the petitioners submitted that during the pendency of the aforesaid proceeding, on the basis of the order dated 14.3.2011 passed by the learned Joint Civil Judge, Junior Division, survey was conducted and Survey report was presented to the learned Joint Civil Judge, Junior Division. By this time, appeal was pending in the District Court. The petitioners therefore called upon the learned District Judge to consider the survey report and then decide the said 3 matter. That was not done by the learned District Judge. 5. Before this Court, learned Advocate Mr. Anturkar, submitted that the very fact that in the suit the prayer was made that boundary limits of property described in para 1(b) should be fixed clearly indicated that the respondents themselves were not very much sure about the boundaries in respect of which the suit came to be filed. According to him, if the Government Officers had conducted the survey and if the said survey was before the Court, it was necessary for the learned District Judge to peruse the survey report and then consider the matter from all angles and pass an order. According to him, since survey report was not considered, order passed by the learned District Court requires reconsideration. 6. I am inclined to accept this submission. Now, that the survey report is available in the interest of justice, it would be proper if the learned Civil Judge, Junior Division, Khed, Rajguru Nagar, Pune considers the application at Exhibit 5 afresh and that while entertaining the said application afresh, the court shall consider the survey report, hear the arguments on both sides and then pass the fresh order below 4 Exhibit 5. Needless to mention that the injunction granted against the present petitioners in terms of item 3 of order dated 10.3.2011 will have to be continued till the order is passed by the learned Civil Judge, Junior Division, Khed, Rajguru Nagar, Pune, as indicated above. The learned Civil Judge, Junior Division Rajguru Nagar, Khed will have to dispose of Exhibit 5 application on or before 15.10.2011. With this observation, the petition is disposed of by passing following order: ORDER i. Order dated 10.3.2011 passed by the learned Civil Judge, Junior Division, Khed, Rajguru Nagar, Pune below Exhibit 5 in Regular Civil Suit No.321 of 2010 is set aside. ii. The order passed by the learned District Judge, 12 and Assistant Sessions Judge, Pune in Misc. Civil Appeal No.103 of 2011 on 2.5.2011 is set aside. Iii. Application at Exhibit 5 is restored to the file of learned Joint Civil Judge, Junior Division, Khed, Rajguru Nagar, Pune. The 5 learned Judge shall hear all the parties afresh, consider the survey report submitted by the Survey Authorities which came to be forwarded alongwith forwarding letter dated 29.4.2011 While hearing this Exhibit 5 application, the learned Civil Judge, Junior Division, shall not feel impressed by what has happened in the past He shall apply his mind afresh. Till this Exhibit 5 application is decided the present petitioners or their agents, servants are restrained from causing any kind of obstruction in the possession/construction of the respondent nos.1 to 6. iii. The parties shall appear before the learned Civil Judge, Junior Division, Khed, Rajguru Nagar, Pune on 27.9.2011 so that the learned Judge can fix the date for hearing and disposal of Exhibit 5 application. Petitioner shall present a copy of this order to the said Judge so that he can act upon it. There shall be no order as to costs. (R.Y.GANOO, J.)