Bombay High Court
M/S Prabhakar Vitthal Kotgire ... vs Dattatraya Shankarrao ... on 20 March, 2017
Bench: S.B. Shukre
46_WP989116.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9891 OF 2016
M/s Prabhakar Vitthal Kotgire
Indian Oil Dealer
Through Authorized Person
Madhavrao Vitthalrao Kotgire
(Died) Through L.Rs.
1. Ashish Madhavrao Kotgire
Age: 45 years, Occu.: Business,
R/o Old Mondha, Nanded.
2. Smt Prabhabai Madhavrao Kotgire
Age: 66 years, Occu.: Business,
R/o Old Mondha, Nanded. ..PETITIONERS
VERSUS
1. Dattatraya Shankarrao Mogadpalli
(Died) Through L.Rs.
1-1. Sudhir Dattatraya Mogadpalli
Age: 62 years, Occu.: Business,
R/o Gurudwara Gat No.3, Nanded
1-2. Shyam Dattatraya Mogadpalli
Age: 56 years, Occu.: Business,
R/o Gurudwara Gate No.3, Nanded.
1-3. Smt. Niramala Pradeep Mogadpalli
Age: 61 years, Occu.: Household and Business,
R/o Kailash Nagar, Nanded.
2. Lamikantrao Shankarrao Mogadpalli
(Died) Through L.Rs.
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46_WP989116.odt
2-1. Satish Laxmikantrao Mogadpalli
Age: 64 years, Occu.: Nil,
R/o Borban Factory, Vazirabad,
Nanded.
2-2. Sharad Laxmikantrao Mogadpalli,
Age: 52 years, Occu.: Business,
R/o Borban Area, Vazirabad,
Nanded.
3. Nandkumar Shankarrao Mogadpalli
Age: 72 years, Occu.: Business,
R/o "Mathura", Near B.K. Hall,
Kailash Nagar, Nanded.
4. Avinash Shankarrao Mogadpalli
Age: 68 years, Occu.: Pensioner,
R/o Manik Nagar, Nanded. ..RESPONDENTS
....
Mr. M.M. Patil (Beedkar), Advocate for petitioners.
Mr. V.V. Bhavthankar, Advocate for Respondent No.4.
....
CORAM : S.B. SHUKRE, J.
DATED : 20th MARCH, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the contesting parties.
2. This writ petition questions the legality and correctness of
order dated 30th August, 2016 passed below Exhibit 36, an application
seeking appointment of Court Commissioner for the purpose of inspecting
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46_WP989116.odt
the northern portion of the suit property sold by sale deed no. 4657/10,
dated 27th April, 2010.
3. The First Appellate Court rejected the application below
Exhibit 26 on the ground that appointment of Court Commissioner for
inspection of northern portion of the suit property is not necessary, in the
facts and circumstances of the case, particularly when such an application
amounts to collection of the evidence.
4. According to the learned Counsel for petitioners, the
appointment of Court Commissioner was necessary to bring out on record
the factual situation which would support the contention of the
petitioners, the tenant of the suit shop, that no hardship is going to be
caused to the respondents if the tenant is not called upon to vacate the
suit shop. Learned Counsel for respondents submits that this is a clear
attempt of collecting the evidence.
5. I think, learned Counsel for respondent is right. When the
contention is that by refusing decree of eviction, no hardship is going to
cause to the landlord, it is for the tenant to adduce necessary evidence in
that regard. If tenant seeks local inspection of some portion of the
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46_WP989116.odt
building in which suit shop is situated, just to support such a contention,
it would be nothing but an attempt to collect the evidence. The tenant
can always, by adducing independent evidence, prove his contention that
no hardship is going to be caused to the landlord by refusing the decree of
eviction. It is for this reason, Court's intervention by appointment of the
Court Commissioner is not necessary.
6. In the circumstances, I do not see any illegality in the
impugned order. Writ petition is dismissed with costs. Rule is
discharged.
( S.B. SHUKRE, J. )
SSD
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