Assen Private Limited vs Deepam Bhikubhai Thanawala And ...
2021 Latest Caselaw 4015 Bom

                                                                          (14) wp-12923-2019.doc

BDP-SPS



 Bharat
 D.                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Pandit
 Digitally signed
 by Bharat D.
                                        CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION NO. 12923 OF 2019
 Pandit
 Date:
 2021.03.09
 09:58:28
 +0530




                    Assen Private Limited                        ...Petitioner
                              V/s
                    Deepam Bhikubhai Thanawala & Ors             ....Respondents
                    ----
                    Mr. H.L. Tiku, Senior Advocate a/w Ms. Gauri Mestha i/b L.J. Law for
                    the Petitioner.
                    Mr. Kishor Malpathak for Respondent Nos. 1 to 4.
                    Mr. Mandar Limaye for Respondent No.5.
                    ----

                                        CORAM: NITIN W. SAMBRE, J.

                                         DATE:     MARCH 4, 2021
                    P.C.:-


                    1]       Heard Mr. Tiku, learned Senior Counsel appearing for the

Petitioner/original Defendant, Mr. Malpathak, learned Counsel

appearing for Respondent Nos. 1 to 4/original Plaintiffs and Mr.

Limaye, learned Counsel appearing for Respondent No.5-Thane

Municipal Corporation.

2] Impugned in the Petition is an order passed by the Court of 2 nd

Joint Civil Judge, Senior Division, Thane in Special Civil Suit No. 389

of 2011 whereby Application-Exhibit-89 moved by the

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Respondents/Plaintiffs for appointment of Court Commissioner under

the provisions of Order 26 Rule 9 of the CPC i.e. Survey Officer/TILR

came to be allowed.

3] According to the learned Senior Counsel appearing for the

Petitioner, title of the suit property came to be vested in the Petitioner

vide conveyance dated 20/8/1960. The Suit No.75 of 1968 was

preferred by one Chunilal Thanawal against M/s Surendra Industries

(Bombay) Private Limited which is owned by the Petitioner. In the

said suit, a Deed of Exchange was executed resulting in unconditional

withdrawal of the Suit No.75 of 1968 on 3/12/1969. Respondent

No.1 to 4 who are Plaintiffs, initiated present Suit i.e. Special Civil Suit

No.389 of 2011 for specific performance, mesne profit and injunction.

Petitioner resisted the claim in the said suit in which issues were

framed on 22/06/2016.

4] Respondent Nos. 1 to 4 on 28/09/2016 moved an application for

issuing witness summons to Respondent No.5 for production of

documents which was rejected on 01/04/2017.

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5] The application under Order 26 Rule 9 of the CPC was moved on

31/08/2019 and the said application came to be allowed on

20/11/2019. As such, this Petition.

6] The learned Senior Counsel for the Peitioner, while questioning

the order impugned, would urge that the earlier suit being RCS No. 75

of 1968 was withdrawn on 03/12/1969 in view of Exchange Deed and

Deed of Right of Way. In the said backdrop, contentions are, fresh suit

i.e. RCS No. 389 of 2011 is not maintainable. It is further claimed that

earlier application for appointment of the Court Commissioner was

already rejected vide order below Exhibit-27 and that being so, second

application for the very same prayer on same allegation will operate as

res judicata. It is claimed that issues were framed way back and till

this date, Respondent Nos. 1 to 4 have not filed affidavit of evidence.

As such, intention of Respondent Nos. 1 to 4 is to delay the suit

proceedings.

7] By inviting attention of this court to the prayer in the Plaint,

learned Senior Counsel for the Petitioner would urge that appointment

of the Court Commissioner was not warranted. It is also alleged that

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vide impugned order, Respondents/Plaintiffs are trying to collect the

evidence.

8] While countering the aforesaid submissions, learned Counsel for

Respondent Nos. 1 to 4 would support the impugned order, as

according to him, appointment of Court Commissioner is warranted in

a suit for specific performance in view of change of boundaries of the

property. He would lay emphasis on Development Plan Road

constructed by the Planning Authority subsequent to filing of the suit

and that being so appointment of Court Commissioner was justified.

As such, he has sought dismissal of the Petition.

9] Considered rival submissions.

10] No doubt, suit in the present proceedings is for specific

performance. Application-Exhibit-89 for appointment of Court

Commissioner specifically speaks that the suit is for enforcement of

contract for exchange of suit property based on Settlement Deed dated

03/12/1969 of which specific performance is sought. Alternative

prayer of the Respondents/Plaintiffs for restoration of possession of

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the suit property could also be noticed. It is required to be noted that

Application-Exhibit-27 for appointment of the Court Commissioner

was with an intention to ascertain the exact area of the suit property

No.2. The said application was rejected on 09/012/2014 with a

finding that specific area of 7902 sq. meters is already known and

admitted in the Plaint by the Plaintiffs. As such, survey was not

warranted.

11] The present application-Exhibit-89 is based on the construction

of road through suit property No.1 and suit property No.2 which is

identified as Pokharan Road which has width of about 30 meters in

the Development Plan. Respondent Nos. 1 to 4 issued notice dated

7/4/2018 to the Thane Municipal Corporation for production of

survey plan and the area statement of the D.P. Road. However, said

documents could not be produced as the survey was not finalized by

Respondent No.5 - Thane Municipal Corporation. As such, it can be

inferred from the record that present application-Exhibit-89 is based

on the subsequent development i.e. construction of D.P. Road by the

Planning Authority. Though the suit in question is for specific

performance, however, if the boundaries of the suit property are not

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certain, in my opinion, even in such a suit, it is always open for the

Plaintiffs i.e. Respondent Nos. 1 to 4 to move a prayer for appointment

of Court Commissioner so as to ascertain the boundaries and the area.

If the said issue is not addressed at the present stage of the

proceedings, it can be noticed that execution of decree either way will

have some adverse repercussions. The fact that passing of D.P. Road

through the suit property, as has been claimed by the

Respondents/Plaintiffs, is not disputed by the Petitioner/Defendant.

In that view of the matter, it cannot be inferred that Respondent Nos.

1 to 4 are trying to collect the evidence by taking out the present

application. The reliefs claimed in the earlier Suit i.e. Suit No.75 of

1968 and in the present Special Civil Suit No.389 of 2011 cannot be

said to be similar. Rather, present suit appears to be for execution of

agreement as was reached in the earlier suit. Apart from above,

application-Exhibit-27 was moved by the Petitioner at the relevant

time for appointment of the Court Commissioner. The same was

rejected for the reasons furnished in the order of rejection. However,

here is a case where application-Exhibit-89 is based on development as

has occurred during pendency of the suit.

(14) wp-12923-2019.doc

12] In the aforesaid backdrop, claim that appointment of Court

Commissioner ought not to have been ordered which is sought to be

canvassed by the learned Senior Counsel for the Petitioner relying on

the judgments of this Court in the matter of Syed. Mushtatque Ahmad

Syed. Ismail and Ors vs. Syed Ashique Ali Khan Haidar Ali reported in

2012 (2) BomCR 790 and in the matter of Dhondiram Nivrutti Pawar

and Ors. vs. Laxman Khashaba Pawar and Ors. reported in 2018(2)

MhLJ 255 cannot be accepted.

13] For the reasons stated above, Petition, in my opinion, lacks

merits and as such stands dismissed.

( NITIN W. SAMBRE, J. )