Bombay High Court
Praful S/O Dnyaneshwar Shelke vs Atmaram Namdeo Dhole on 9 December, 2021
Bench: Avinash G. Gharote
wp7788.19.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7788/2019
Praful Dnyaneshwar Shelke...Versus...Atmaram Namdeo Dhole
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. A.V.Bhide, Advocate for petitioner
Mr. H.R.Gadhia, Advocate for Respondent
CORAM : AVINASH G. GHAROTE, J.
DATE : 09/12/2021
Heard Mr. Bhide, learned counsel for the
petitioner and Mr. Gadhia, learned counsel for the
respondent.
The petition challenges the order dated
14.11.2019 whereby the application filed by the plaintiff
to have joint measurement of the disputed property has
been rejected on the ground that it has been filed
belatedly at the stage of arguments.
Mr. Bhide, learned counsel for the petitioner
submits that in a case dealing with encroachment, it is
always necessary to decide the lis by conducting a joint
measurement so as to render finality to the question
involved. In the present matter, though the suit according
to him has been filed on the basis of the measurement
conducted by one Ashish Chavhan, the same is a private
measurement and without notice to the defendant and
therefore, in order to render a finality to the issue, joint
measuring would be necessary. Reliance is placed upon
wp7788.19.odt
Ramzan Sheikh Chand Sheikh vrs. Panjab Nathuji
Gawande, 2014 (6) Mh.L.J. 97
Mr. Gadhia, learned counsel for the
respondent submits that this is nothing but an attempt to
collect evidence, finding that the plaintiff may now loose
the litigation and therefore, could not be permitted, for
which reliance is placed upon Shaikh Isak Shaikh Amir
vrs. State of Maharashtra, 2011 (3) Mh. LJ 185 and
judgment in CRA No. 163/1997 (Vishnu Anant Pollshet
vrs. Shankar Bhiva Shetgaonkar), decided on 22.12.1997.
Whenever a case of encroachment comes
before the Court, it would be necessary to have a joint
measurement of the property in question so as to decide
the lis finally, as without such a joint measurement, the
matter remains lingering and leads to further litigation
and therefore the question has to be given an hiatus.
That in my considered opinion, should be the basic ground
on which all applications for joint measurement of the
property by appointment of Commissioner u Order 26
Rule 9 of CPC ought to be considered. Such view has also
been taken in Ramzan Sheikh Chand Sheikh (supra).
Though Sheikh Isak (supra) holds that an application at a
belated stage would amount to collecting evidence, which
is also what has been held in Vishnu Anant Pollshet, in my
considered view, looking to the facts of the present case,
when the initial measurement itself was done without
notice to the other side, it cannot be considered as a
wp7788.19.odt
measurement in the eyes of law, considering which it is
necessary to decide the lis on the basis of the joint
measurement of the suit property. Any inconvenience
caused can always be compensated in terms of money.
In the circumstances, the impugned order is
hereby quashed and set aside and the application below
Exh.31 is allowed, however, subject to the cost of
Rs. 25,000/- to be paid by the plaintiff to the defendant. It
is also made clear that the expenses for the joint
measurement shall be borne by the plaintiff.
The petition is disposed of in above terms. No
costs.
JUDGE
rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:09.12.2021 17:30
