Bombay High Court
NAVNATH VISHNU MADKE AND ANOTHERversusUDDHAV ANKUSH MADKE AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The trial court's order allowing a fresh application for a Court Commissioner report is not perverse and does not merit interference.
Summary
The petitioners challenged a common order dated 21.08.2023 in which the trial court allowed a second application for a fresh Court Commissioner report in a boundary dispute suit (RCS No.237/2015). They argued that once an earlier application had been allowed and a report submitted, the court should not entertain further applications on the same ground. The respondents defended the trial court’s order. The High Court examined the suit, noting that appointing a Court Commissioner is proper in such disputes and that allowing a fresh report does not prejudice the petitioners, who can cross‑examine the surveyor. The Court found no perversity in the trial court’s order and declined to interfere under writ jurisdiction. It also directed the trial court to dispose of the civil suit within one year, and the writ petition was disposed of.
Issues considered
- Whether the trial court erred in entertaining a second application for a fresh Court Commissioner report after an earlier report had been submitted.
- Whether the filing of a second application caused any prejudice to the petitioners warranting interference under writ jurisdiction.
Subjects
- Court Commissioner
- Civil Suit
- Boundary dispute
- Writ Petition
- Multiple applications
- Prejudice
- Expeditious disposal
- Civil Procedure
Judgment
2026:BHC-AUG:1185
907-WP-12971-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 WRIT PETITION NO. 12971 OF 2023
Navnath Vishnu Madke And Another
VERSUS
Uddhav Ankush Madke And Others
…..
Mr. Dhananjay Mane h/f Mr. P. A. Baharat, Advocate for the Petitioners
Mr. Y. V. Kakade, Advocate for Respondent Nos.1 and 2
…..
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 13.01.2026
PER COURT :
1. Heard the learned Counsel Mr. Mane for the Petitioners and the
Counsel Mr. Kakade for Respondent Nos.1 and 2.
2. By way of the present petition, the Petitioners are assailing the
common order dated 21.08.2023 passed below Exhibits – 37 and 45 by
the learned Civil Judge, Junior Division, Shevgaon in RCS
No.237/2015, whereby the application below Exhibit – 37 filed by
Original Plaintiff / Respondent Nos.1 and 2 and application below
Exhibit – 45 filed by Original Defendant Nos.1 to 3 came to be
allowed.
3. The learned Counsel Mr. Mane for the Petitioners submits that
initially an application below Exhibit - 15 came to be allowed, whereby
the learned Trial Court directed the Court Commissioner to submit a
report. Pursuant thereto, the report was submitted. Thereafter,
another application was filed pointing out that the said report was not
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907-WP-12971-2023.odt
proper, and consequently, an application below Exhibit - 37 came to be
filed. He submits that once the earlier application was already allowed
and the report was submitted, the learned Trial Court ought not have
entertained multiple applications on the same grounds.
4. Per contra, the learned Counsel Mr. Kakade for Respondent Nos.1
and 2 supports the order passed by the learned Trial Court.
5. I have gone through the impugned order passed by the learned
Trial Court as well as the copy of plaint and other record placed along
with the present petition. The suit is filed for removal encroachment
and fixation of boundaries. When such a dispute arises, the learned
Trial Court is justified in appointing a Court Commissioner for proper
adjudication.
6. Initially, the application for appointment of Court Commissioner
was allowed and a report was submitted. Subsequently, on an
objection that the report was not proper, another application came to
be filed and the same was entertained by the learned Trial Court.
Considering the nature of the suit and the dispute involved, merely
because a fresh application Exhibit – 37 was filed for obtaining a
proper report, no prejudice is likely to be caused to the Petitioners. The
Petitioners would get an opportunity to cross-examine the Cadastral
Surveyor as well as the Plaintiffs.
7. Therefore, I do not find any perversity in the impugned order
warranting interference under writ jurisdiction.
8. However, considering the fact that the suit is of 2015, and as
both the learned Counsels jointly request for expeditious disposal, the
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learned Trial Court is directed to decide Regular Civil Suit
No.237/2015 within a period of one year from today.
9. In view thereof, writ petition is disposed of.
[SIDDHESHWAR S. THOMBRE, J.]
Sameer/January-2026
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