Final Order 2

Order Details: Notice of Motion
Pdf Text: Date
15.01.2024
04
Coram: H.H.J. Shri. V. G. Raghuwanshi, City Civil Court, Mumbai.
(C.R.08)
SU
2810/2008
NM
524/2020
Mr. Ashok Ananta Salunke, C.A. of plaintiff is present.
Adv. Ravindra Singh present for plaintiff.
Adv. Khatib present for defendant/State.
Order on Notice of Motion No.524 of 2020
Perued notice of motion, affidavit in support of it and written
statement. I have heard learned counsels of both sides. It is
contention of learned counsel of plaintiff Shri. Singh that plaintiff is
a social worker. He is serving society by providing education to
people. His trust is taking care of suit plot since last 40 years. State
of Maharashtra is owner of suit property. Plaintiff requested
defendants to safe guard suit property by removing encroachers and
trespassers. But defendants did not take any action against
encroachers therefore plaintiff filed this notice of motion for
appointment of court commissioner to visit suit site and submit his
report about possession of the suit site.
Shri. Khatib learned counsel for defendants submitted that this
suit was filed in 2008. Issues were framed in 2011. Now this notice
of motion is filed to prolong the suit. Commissioner cannot be
appointed to ascertain possession of possession over suit property.
This notice of motion is beyond scope of order 26 rule 9 of Civil
Procedure Code. Plaintiff has not locus standi to file such notice of
motion. He prayed for rejecting this notice of motion with cost.
I have thoughtfully considered submissions of both sides. It
appears suit was filed in 2008. Issues were framed in 2011,
thereafter affidavit of examination in chief was also filed, thereafter
this notice of motion was taken. This notice of motion is also
pending from year 2020. Admittadly plaintiff is not owner of suit
property. He claims that he is protecting suit property from
trespassers. But he avoids to say that he is also a trespasser. Order
26 Rule 9 of C.P.C. deals with appointment of court commissioner
for making local investigation. Ascertainment of possession is not
mentioned in Rule 9. Plaintiff has to prove his contentions by
adducing evidence on record. Rule 9 of order 26 of C.P.C. cannot be
utilised to collect evidence of possession of suit property. With these
observations I pass following order;
ORDER
1. Notice of Motion No.524 of 2020 is rejected.
2. Notice of Motion No.524 of 2020 stands disposed off.
-- 1 of 2 --
Matter adjourned for Recording Evidence to 09.02.2024.
Judge
-- 2 of 2 --