Maharu Hari Wani vs Mahendra Nandlal Kothari
2016 Latest Caselaw 4107 Bom

                                         1                   WP-7692.16.doc




                                                                         
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD




                                                 
                         WRIT PETITION NO. 7692 OF 2016




                                                
              Maharu s/o Hari Wani
              Age 63 years, occup. Business,
              R/o CTS No.2669, Amalner,           .. Petitioner/
              Tq. Amalner, Dist. Jalgaon             Orig. Plaintiff




                                       
                      versus 
              Mahendra Nandlal Kothari,
              Age : 62 years, occup. Business,
                            
              R/o Shop No. 1 & 2, Agriculture
              Produce Market Committee,           .. Respondent/
              Amalner, Tq. Amalner,                  Orig. Defendant
              District Jalgaon
      


                  ------
     Mr. Kishor C. Sant, Advocate for petitioner
   



     Mr. Yatish G. Gujarathi, Advocate for respondent

                                   CORAM :   SUNIL P. DESHMUKH, J.

                                   DATE :    25th July, 2016





     ORAL JUDGMENT :


     1.       Rule.     Rule made returnable forthwith.     Heard learned

counsel for the parties finally by consent.

2. Petitioner who is before this court is a landlord and has

instituted regular civil suit no. 12 of 1999 in the court of Civil

Judge, Junior Division, Amalner, against present respondent-

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tenant seeking his eviction, inter alia, on the grounds of

reasonable and bonafide requirement and non-user of the

premises by the tenant.

3. Said suit had terminated into its dismissal under the

judgment and order dated 09-12-2011. It appears that the

matter since then has been resting with appellate court under

regular civil appeal no. 5 of 2012.

4.

After hearing learned counsel, there does not appear to

be much dispute on factual position that a portion of

tenanted premises had collapsed and come down in 2013. It

further appears that there has been some correspondence in

this respect, including one criminal prosecution at the

instance of tenant against the landlord and his son.

5. In regular civil appeal no. 5 of 2012, an application

(Exhibit-19) came to be moved at the instance of appellant in

April, 2016 purportedly pursuant to Order XXVI, rule 9 of the

Code of Civil Procedure, 1908 for a report in respect of the

condition of the roof of the tenanted premises.

6. Exhibit-19 was opposed to by the tenant-respondent,

referring to that appointment of court commissioner in the

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present case may not be called for, since the report would

seldom have any bearing on the grounds being taken up for

eviction.

7. After hearing parties, the appellate court by impugned

order passed on 10-06-2016 rejected the application Exhibit-

19 and as such the appellant is before this court.

     8.       Learned        counsel
                              ig        Mr.     Kishor      Sant      appearing         for

petitioner vehemently submits that looking at the factual

position, the situation can be resolved to a large extent and

damage to tenanted premises can be assessed by

appointment of court commissioner. He submits, the landlord

may not be in a position to go to tenanted premises and asses

the damage, the tenant being claiming to be in possession of

the property. He, therefore, urges this court to give

indulgence to the request being made under Exhibit-19.

9. On the other hand, learned counsel Mr. Yatish Gujrathi

appearing on behalf of sole respondent, takes a diagonally

opposite stand, vehemently equally submitting that the

appellate court has taken stock of the situation including the

scope of dispute pending between the parties and has

considered that the application Exhibit-19 is unrelated to the

4 WP-7692.16.doc

dispute. He submits that when primarily dispute is with

regard to bonafide requirement of landlord and allegation of

non-user of suit premises for six months preceding the suit,

the roof collapse has hardly to do anything with said grounds.

As a matter of fact, it is an ingenuous attempt by the landlord

to collect evidence in disguise which is estimated by the

landlord which would sub-serve his cause. Learned counsel

submits, in none of the grounds taken in the suit for eviction,

the event of collapse of roof is appearing. He particularly

emphasizes the reasons in paragraph no. 6 of the impugned

order, which have weighed while passing the impugned order.

10. Upon aforesaid, it appears that as far as dispute

pending in regular civil appeal n. 5 of 2012 is concerned,

admittedly roof collapse appears to be in 2013 and the

application Exhibit-19 had been moved only in April, 2016

taking up a plea of examining roof condition. It appears that

the grounds which have been taken up by the landlord for

eviction of the tenant have their primary thrust on bonafide

requirement of the petitioner-landlord and non-user by the

respondent-tenant of the premises. In the circumstances, as

observed by trial court and submitted by learned counsel for

respondent, appointment of court commissioner would not be

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able to serve any purpose underlying regular civil appeal no. 5

of 2012 filed by present petitioner.

11. The observations as are occurring under paragraph no.

6 of the impugned order are being reproduced hereinbelow for

ready reference.

'' 6. As to Point No. 1 :- I have gone through the judgment of the

learned lower Court by which the suit was dismissed. On perusal of the judgment, it reveals that Issue No. 5 relates to the requirement of

the defendant and Issue No.10 relates to non-user of the suit property. Learned advocate for the defendant Mr. M. J. Bagul has

rightly submitted that the non-user for the period of six months preceding date of filing of the suit is the requirement for obtaining decree on the ground of non-user. Therefore, the present situation

of the suit property is not required to be brought on record, in order to decide the controversy between the parties. It appea5rs that by

filing present application the plaintiff wants to bring on record subsequent event. Ultimately it can be said that by appointing the

Court Commissioner the plaintiff wants to collect evidence, which is not permissible. Looking to the facts and circumstances of the case and fact that so called act of demolition had taken place during the pendency of the appeal, in my view, it is not necessary at all to

appoint Court Commissioner. Hence, I answered Point No. 1 in the negative. ''

12. Having regard to the reasons and observation quoted

hereinabove which have weighed with the appellate court,

the reasons given for rejection of Exhibit-19 would not be

6 WP-7692.16.doc

liable to be faulted with and as such, writ petition does not

deserve any consideration for giving indulgence to the

petitioner.

13. Writ petition as such is dismissed. Rule stands

discharged.

                              ig        SUNIL P. DESHMUKH,
                                             JUDGE
                            
     pnd