Bombay High Court
Kirit Purushottam Kapadia Since Dec Thr ... vs Ramgopal Bhagwandas Choudary Since Dec ... on 30 August, 2024
2024:BHC-AS:35171
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12116 OF 2024
Kirti Purshottam Kapadia Since (Decd)
Thr. Lrs. & Ors. ... Petitioners
Versus
Rajendra Bhagwandas Choudhary & Ors ... Respondents
AND
WRIT PETITION NO. 12117 OF 2024
Kirti Purshottam Kapadia (Decd)
Thr. Lrs. & Anr. ... Petitioners
Versus
Ramgopal Bhagwandas Choudhary (Decd)
Thr. Lrs. & Ors ... Respondents
Mr. Jamsheed Master a/w Ms. Natasha Bhot for the Petitioners.
Mr. Alok Bagla a/w Ms. Rekha Shukla & Ms. Bhargavi R. for the
Respondent Nos. 1 & 2.
CORAM : SANDEEP V. MARNE, J.
DATE : 30 AUGUST 2024.
Digitally
signed by
MANE
MANE SONALI
SONALI DILIP
DILIP Date:
2024.09.02
14:55:38
+0530
___Page No.1 of 12___
30 August 2024
::: Uploaded on - 02/09/2024 ::: Downloaded on - 27/09/2024 22:09:24 :::
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
ORAL JUDGMENT :-
1) Rule. Rule made returnable forthwith. With the consent of
the learned counsel appearing for parties, Petitions are taken up for
hearing and disposal.
2) The Petitioners have filed this Petition challenging the
Orders dated 11 July 2024, 26 July 2024, 7 August 2024 and 17 August
2024. All the Orders essentially arise out of Plaintiffs' endeavor to
examine the Court Commissioner as a witness. By Orders dated 11
July 2024, the Applications filed by Defendants for not permitting
examination of the Court Commissioner came to be allowed on the
ground that since the Court Commissioner was appointed for collection
of evidence, he cannot be permitted to be examined as a witness nor his
report can be looked into. The second set of Orders dated 26 July 2024
are on application filed by the Plaintiffs for issuance of summons to the
Court Commissioner for proving his report, documents and
photographs, which application is rejected. The third set of Orders
dated 7 August 2024 are seemingly passed in Plaintiffs' favour where
the Court Commissioner is permitted to be called as a witness, but only
in his individual capacity and not in the capacity as the Court
Commissioner, which part is treated as adverse by Plaintiffs. The last
set of Orders dated 17 August 2024 are passed rejecting the application
at Exhibit 166 filed by Plaintiffs for admitting the bill of M/s. Arihant
Digital Photo Studio as secondary evidence alongwith photographs
already produced before the Court. Plaintiffs thus feel aggrieved by
non-grant of opportunity to prove the observations of court
___Page No.2 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
commissioner during his visit and photographs taken by him during
such visit.
3) Thus, the entire genesis of dispute between the parties
arise out of the initial Orders dated 11 July 2024 by which the Small
Causes Court has rejected the prayer of Plaintiffs for examination of
Court Commissioner for the purpose of proving his report.
4) It appears that the Court Commissioner was appointed by
the learned Judge of the Small Causes Court by Order dated
1 November 2007 with the mandate to carry out inspection of the suit
premises and submit his report. However, the Order passed by the
Small Causes Court appointing the Court Commissioner came to be set
aside by the Appellate Bench of the Small Causes Court by Order dated
24 March 2008. When Plaintiffs challenged the Order of the Appellate
Bench by filing Writ Petition No. 2610 of 2008, by Order dated
12 January 2009 this Court left the issue of relevance of the Court
Commissioner's Report to be decided by the Small Causes Court. It is
in the above factual background that the Defendants opposed
examination of the Court Commissioner at the behest of the Plaintiffs.
The Small Causes Court has allowed the Application at Exhibit 151
filed by the Defendants referring to the Order passed by this Court in
Writ Petition No. 2610 of 2008 and holding that the appointment of
Court Commissioner was for the purpose of collection of evidence.
5) Mr. Master, the learned counsel appearing for Petitioners
would submit that the Court Commissioner is a vital witness in the
case and must be permitted to be examined for proving his report. He
would rely on order passed by this Court in Ubrajidevi Sohanlal
___Page No.3 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
Rajbhar Versus. Smt. Inraji Mithailal Pasi 1 in support of his
contention that in a Rent Act Suit, production of evidence about factual
position at the suit premises provides the necessary aid for the Court to
decide the controversy raised before it.
6) Mr. Bagla the learned counsel appearing for
Respondent/Defendants would submit that the Order appointing Court
Commissioner was not only passed ex-parte but the appointment of
Court Commissioner was clearly aimed at collection of evidence. He
would submit that the Plaintiffs have otherwise failed to prove their
case and are now wanting to rely upon the report of the Court
Commissioner to fill in the lacuna. He would rely upon judgments of
Himachal Pradesh High Court in Sanjeev Kumar alias Sanjeev
Raizada Versus. Sh. Yudhvir Singh2 and of this Court in Sanjay
Namdeo Khandare Versus. Sahebrao Kachru Khandare3.
7) I have considered the submissions canvassed by the learned
counsel appearing for parties. This is a suit filed for recovery of
possession under the provisions of Maharashtra Rent Control Act, 1999
(MRC Act). Therefore, the usual principle which is made applicable to
typical disputes relating to encroachment of lands or about possession
of lands may not be attracted in the suit filed by landlord for recovery of
possession from tenant on the grounds such as erection of unauthorized
construction, change of user, non-user, etc. The Court can receive
necessary assistance by ascertaining the factual position existing at the
suit premises. Thus, appointment of Court Commissioner actually
assists the Court in arriving at the correct factual position. This
Writ Petition No. 10456 of 2023 on 19 August 2024.
2023 SCC OnLine HP 1650.
2001(1) Bom. C.R. 800.
___Page No.4 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
actually is the purpose behind empowering a Court to issue commission
under provisions of Order XXVI Rule 9 of the Code of Civil Procedure.
Rule 9 of Order 26 provides thus:
Commissions for local investigations
9. Commissions to make local investigations.--
In any suit in which the Court deems a local investigation to be requisite or
proper for the purpose of elucidating any matter in dispute, or of ascertaining
the market-value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such investigation and to report
thereon to the Court:
8) Thus, the objective behind empowering the Court to issue
commission is to essentially elucidating the matter in dispute. True it
is that in a case involving dispute about encroachment of land or for
seeking recovery of possession of land, Plaintiff needs to first elucidate
his case by leading evidence and if the Court finds that the commission
is necessary for better resolution of the factual controversy, it can direct
appointment of commissioner even in those suits. In Rent Act Suits,
particularly involving the allegation of unauthorised additions or
alterations in the suit premises thereby causing injury or destruction
thereto or erection of permanent structure, etc issuance of court
commission many times becomes eminent to ascertain the ground
reality. Similarly in a case involving change of user, sometimes
ascertainment of nature of activity carried out at the suit premises may
provide necessary assistance to the Court in deciding the factual
controversy. Therefore, in every case appointment of Court
Commissioner cannot be rejected on a broad principle that Plaintiff
cannot collect, gather or create evidence through Court Commissioner.
___Page No.5 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
In many cases like the present one, appointment of Court
Commissioner for ascertainment of the factual position is actually
aimed at providing the necessary assistance to the Court for
determining the real question in controversy between the parties. In
my view, therefore, the report of the Court Commissioner, which is
already on record, cannot be completely discarded under a specious plea
of collection of evidence.
9) Reliance of Mr. Bagla upon the judgment of Himachal
Pradesh High Court in Sanjeev Kumar (supra) does not cut any ice as
the case involved suit for removal of encroachment. Furthermore, the
case involved raising of mutually destructive pleas and the learned
Single Judge of the Himachal Pradesh High Court has observed that
the Plaintiff was already aware of boundaries of suit property and
therefore appointment of court commissioner was denied for 'creation'
of evidence. The Court held thus:
4. This application has been dismissed by the learned Trial Court vide
order dated 17.04.2019, by holding that the plaintiff had filed the suit
for permanent prohibitory injunction and mandatory injunction,
claiming the relief of possession upon the portion which was the part
of Khasra No. 6720, on account of encroachment made by the
defendant, which encroachment allegedly was made during the
pendency of the suit. Learned Court held that the plaintiff had filed
an application for amendment of the suit in which there was a specific
averment made that portion ABCDEFHIA, which was part of Khasra
No. 6720, was encroached upon by the defendant during the pendency
of the suit. In this background, the plaintiff was now taking a
destructive plea by moving the application for appointment of
the Local Commissioner on the plea that it was necessary to
find as to whether the land in issue was part of Khasra No.
6720 or not because this implied that the plaintiff was not
aware of his own boundaries and rather he was dragging the
Court for collecting evidence on his behalf to prove that
certain portion of suit land stood encroached upon by the
defendant. Learned Court also observed that as the plaintiff had
___Page No.6 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
placed reliance upon the site plan, therefore, the onus was upon him
to prove the same and the provisions of Order 26, Rule 9 of the Code of
Civil Procedure could not be invoked so as to involve the Court in the
process.
5. Having gone through the order passed by the learned Court below
and having heard learned Senior Counsel for the petitioner/plaintiff as
also learned Counsel for the respondent/defendant, this Court does not
find any perversity in the impugned order. When it is a matter of
record that the petitioner had sought amendment in the suit
on the ground that during the pendency of the suit, certain
part of the suit land stood encroached by the defendant, this
pre-supposes that the petitioner was aware of his boundaries
and only thereafter, he levelled allegations against the
respondent of encroaching upon his land. In this background,
but natural, the petitioner cannot be permitted to call upon
the Court by way of appointment of a Local Commissioner to
create evidence to prove his allegation as to whether part of
the suit land mentioned in the application filed under Order
26, Rule 9 of the Code of Civil Procedure stood encroached
upon by the defendant or not.
(emphasis added)
10) Therefore, the judgment of Himachal Pradesh High Court
in Sanjeev Kumar cannot be cited in support of an absolute
proposition that in no case court commissioner can be appointed if
Plaintiff seeks assistance in proving his case in a better manner.
11) Similarly, the judgment of this Court in Sanjay Namdeo
Khandare (supra) deals with appointment of court commissioner for
collection of evidence regarding actual possession of suit field. This
Court, in its short order, held thus:
2. This revision application takes exception to the order passed by the
Civil Judge, Junior Division, Mahagaon, dated July 24, 1998, directing
appointment of Court Commissioner. On going through the said order,
it would appear that the Court has appointed the Court Commissioner
empowering him to visit and inspect the spot being suit field and to
submit report regarding actual possession of the suit field. This would
___Page No.7 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
tantamount to appointing Court Commissioner for collecting evidence
regarding possession. It is well settled law that the Court
Commissioner cannot be appointed for collecting evidence. The learned
counsel for the respondent has supported the order by contending that
in the peculiar facts and circumstances of the case, there is no reason
to interfere with the order passed by the Court below.
12) On the contrary, the reliance placed by Mr. Master on the
order passed by this Court in Ubrajidevi Sohanlal Rajbhar Versus.
Smt. Inraji Mithailal Pasi4 would be apposite in the present case. In
paragraph 3 of the order, this Court held as under:
"3) It is seen that one of the grounds for seeking ejectment of the
tenants is unauthorised additions and alterations in the suit premises.
With a view to prove allegation of unauthorised additions and
alterations, Plaintiffs desire taking of photographs as well as carrying
out measurements in respect of the suit premises. It appears that the
Plaintiffs witness is still in the witness box and at this stage the
application for inspection was filed. In my view, though the right to
inspect under Section 28 of the M.R.C. Act is restricted to the landlord
alone, the purpose for carrying out inspection during pendency of the suit
is altogether different. Section 28 of the M.R.C. Act confers general right
on the landlord to inspect the premises. Such right can be exercised in
absence of filing of any suit. However, once the suit for ejectment is filed,
it is for the Court to exercise necessary powers under the provisions of
Order 26 Rule 9 of the Civil Procedure Code (Code) for seeking such
assistance as may be required for enabling it to decide the factual
controversy in best possible manner. This is the reason why the Court is
clothed with power to appoint commissions to make local investigations
under Order 26 Rule 9 of the Code. In the present case as well, the Court
has permitted photographer, as well as competent person to accompany
the landlord during the course of inspection so that the Court would be in
a position to appreciate and decide the allegations of unauthorised
additions and alterations to the suit premises. Production of
photographs, as well as, presentation of measurements would assist the
Court in deciding the subject matter of controversy in a better manner. I
therefore do not see any reason why the photographer or competent
person cannot accompany the landlord during the course of inspection. I
therefore do not find any valid reason to interfere in the impugned order
dated 21 April 2023. The Writ Petition is accordingly ejected."
Writ Petition No. 10456 of 2023 on 19 August 2024.
___Page No.8 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
13) In the present case, recovery of possession of the suit
premises is sought inter alia on the ground of change of user and
unauthorized subletting. It appears that appointment of Court
Commissioner was sought essentially to prove the factum of the
Defendant No. 2 actually using the suit premises for commercial
purposes. So far as use of the suit premises by Defendant No. 2 is
concerned, there appears to be no factual dispute as the Defendants
claim that Defendant No. 2 in his capacity as brother of Defendant
No. 1 is entitled to use the suit premises as a family member. The
learned counsel for the Respondents would submit that the second
Defendant also uses the suit premises for residential purposes and that
there is no element of exclusivity in relation to the possession of
premises by the second Defendant. In my view, all these aspects will
have to be determined by the Small Causes Court after assessing the
evidence on record. What Plaintiffs desires to prove through the report
of the Court Commissioner was that on the relevant date, the premises
were being used for commercial purposes by the second Defendant.
Whether the report would prove use of the entire suit premises for
commercial purposes and whether such use was continuous in nature
or not, are questions of fact which need to be decided after assessing
the entire evidence on record. The Court Commissioner has made
observations during the course of his appointment and has apparently
taken photographs. I do not see why the Court should turn a complete
blind eye to the said material on record which would in fact assist the
Court in deciding the real question in controversy involved in the suit.
14) The present cases also involve unique circumstances. The
Court Commissioner was appointed at the initial stage of the suit. The
___Page No.9 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
Appellate Bench set aside the order of appointment of court
commissioner, after he made the visit and prepared his report. This
Court has not upheld the order of the Appellate Bench by holding that
court commissioner was appointed for collecting evidence. On the
contrary, this Court left it to the trial court to decide whether to
consider the court commissioner's report or not. Plaintiffs have
elucidated their case by leading evidence. Plaintiffs can otherwise seek
appointment of court commissioner as this stage. I therefore do not see
any reason why Plaintiffs should be denied opportunity to prove the
commissioner's report placed on record.
15) Mr. Bagla would seek to highlight an endorsement made by
the Advocate appearing on behalf of Plaintiffs on application at Exhibit
151 that Plaintiffs would comply with the Order passed by the Court.
According to him, the said endorsement prevents Plaintiffs from
challenging the Order dated 11 July 2024 passed on Exhibit 151. I am
unable to agree. The endorsement cannot be interpreted to mean that
by Order dated 11 July 2024 has been passed with the consent of
Plaintiffs. He would also submit that Plaintiffs have accepted the order
dated 11 July 2024 and cannot now to allowed to turn around and
challenge the same. However, it is seen that the Court has been
conducting hearing of the suit on day-to-day basis, which is why the
further impugned orders July 2024, 7 August 2024 and 17 August 2024
are passed by the Court in quick succession. Considering this position,
I am unable to hold that Plaintiffs have acquiesced in the order dated
11 July 2024.
___Page No.10 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
16) Considering the peculiar facts and circumstances of the
present case, I am of the view that the report of the Court
Commissioner would provide necessary assistance to the Trial Court in
deciding the contesting claims between the parties. The Trial Court
therefore ought to have allowed Plaintiffs to examine the Court
Commissioner for proving the report. If there are any inconsistencies in
the report submitted by the Court Commissioner, the Defendants
would be at liberty not only to cross-examine the Court Commissioner
but also invite the attention of the Trial Court to such inconsistency
during the course of hearing of the suit.
17) In my view, therefore, the Orders dated 11 July 2024
passed by the learned Judge of the Small Causes Court is
unsustainable and liable to set aside. Once the Order dated 11 July
2024 is set aside and the Court Commissioner is allowed to be
examined for the purpose of proving his report, the subsequent Orders
dated 26 July 2024, 7 August 2024 and 17 August 2024 would be
rendered meaningless.
18) Accordingly, the Petition succeeds. Orders dated 11 July
2024 passed by the learned judge of the Small Causes Court are set
aside and application filed by the Defendants for discarding the court
commissioner's report are dismissed. Plaintiffs would be at liberty to
examine the Court Commissioner for the purpose of proving his report
alongwith the necessary photographs and other accompanying
documents. All questions relating to the validity of the observations of
the report as well as capacity of the Court Commissioner to prove the
___Page No.11 of 12___
30 August 2024
Sonali Mane 912-WP-12116-2024 & WP-12117-2024(FC).docx
Report are kept open to be agitated by the parties before the Small
Causes Court. It is clarified that the Orders dated 26 July 2024, 7
August 2024 and 17 August 2024 shall not come in the way of Plaintiffs
in proving the Court Commissioner's report, photographs and all other
accompanying documents, if they are otherwise admissible in law. All
points raised by parties on merits of the suits are expressly kept open.
19) With the above directions the Writ Petitions are allowed. Rule is
made absolute, without any order as to costs.
[SANDEEP V. MARNE, J.]
20) After the Order is dictated, Mr. Bagla would pray for stay of
the order for a period of two weeks. The request is opposed by
Mr. Master submitting that the suit has been expedited by the
Supreme Court. Considering the facts and circumstances of the case,
the order shall stand stayed for a period of two weeks from today.
[SANDEEP V. MARNE, J.]
___Page No.12 of 12___
30 August 2024
