Final Order 1

Order Details: Notice of Motion
Pdf Text: Dt.07/08/2019
SU 1211/10
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Roznama
CORAM : H.H.J SHRI. C. V. MARATHE (C.R.NO.08)
None for plaintiff.
Adv. Khandagle h/f Adv. Ms. Patil for MCGM/Deft. present.
Order on NM No. 509/19
By instant NM the plaintiff has prayed to direct
defendant/MCGM to file affidavit and produce documents in
respect of alleged action in respect of the suit premises and to
appoint Court Commissioner to visit the suit premises and
submit report. The defendant/MCGM strongly resisted the
application by filing reply and contended that the plaintiff
wants to delay the matter and he is in habit of making
unauthorized constructions after getting interim orders.
According to ld. Adv. for plaintiff if the defendant/MCGM
claims that demolition action was taken by it against the suit
premises, they should bring documents supporting the said
claim and therefore such documents are necessary for deciding
the suit. He has further argued that the appointment of Court
Commissioner is necessary to bring true facts and status of the
suit premises before the Court and the plaintiff is not collecting
any evidence by seeking appointment of Court Commissioner.
After going through the record of this very old matter of the
year 2010, it can be seen that the plaintiff tendered many
notice of motions in this suit. The instant NM is to direct
defendant/MCGM to produce documents in respect of alleged
demolition action against the suit premises. In the plaint the
prayers are for permanent injunction restraining
defendant/MCGM from demolishing the suit premises without
following due process of law. If the defendant/MCGM claims
that the suit premises is demolish, then the burden is upon it to
prove the same in view of section 103 of Indian Evidence Act,
1872. the plaintiff has to prove his own case to get the reliefs
claim in the plaint. For these reasons, the prayer for direction
to defendant/MCGM to produce documents and to tender
affidavit about alleged demolition action against the suit
premises is rejected.
As discussed herein earlier, the burden is on plaintiff to prove
his case. Even if he claims that by appointment of Court
Commissioner he is not collecting any evidence, he is praying
to appoint the Court Commissioner to visit the suit premises
and to know the status thereof. Under Order 26 Rule 9 of CPC
Court Commissioner for appointed for local investigation if
such appointment is found to be requisite or proper for the
purpose of elucidating any matter in dispute. After going
through the pleadings, the plaintiff wants appointment of
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Dt.07/08/2019
SU 1211/10
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Court Commissioner to prove his case of authorization of suit
structure and existence thereof even after alleged demolition
by defendant/MCGM. That can be done by adducing evidence
by the plaintiff himself. Appointment of Court Commissioner
for the said purpose is neither requisite nor proper for
elucidating the matter in dispute. For both these reasons the
NM is devoid of merits and the same is dismissed.
Adjd to 26.08.2019 for cross examination of DW 1.
Judge
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