Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1560-2019 in NM 1643-2017 in SU 1010-2017
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 1560 OF 2019
(CNR No.MHCC01-004193-2019)
IN
NOTICE OF MOTION NO.1643 OF 2017
(CNR No.MHCC01-004705-2017)
IN
SUIT NO.1010 OF 2017.
(CNR No.MHCC01-004274-2017)
Ramniklal P. Gada }...PLAINTIFFS.
Versus
1. Mishrilal Haribaran Gupta }
2. Suresh Anil Kunder }...DEFENDANTS.
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Shri.Sujit Nikam, learned advocate for the plaintiff.
None appeared for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 11/03/2021)
1. By filing this Notice of Motion, plaintiff has claimed relief
as under;
a. That the direction may be issued for issuance of a commission
for investigation of place of business i.e., M/s. India Restaurant in the
and/or i.e., Plot No.1, Agra Road, Nityanand Nagar, Near Fish Market,
Ghatkopar, Mumbai-77, by invoking the provision of Section 75 and
Order 26 Rule 9 of Code of Civil Procedure.
2. Read the affidavit filed in support of Notice of Motion.
Heard learned Shri.Sujit Nikam advocate for plaintiff. None appeared
for the defendants to advance argument. Perused the entire record.
3. Learned advocate for the plaintiff argued that plaintiff and
the defendant No.1 are the co-owners of the suit premises and business
of M/s.India Restaurant therein, defendant No.1 has illegally inducted
defendant No.2 in the suit premises by arbitrarily terminating the Leave
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and License Agreement of Shashidhar Shetty without knowledge of the
plaintiff and hence, plaintiff has filed this suit for mandatory injunction
for directing the defendant No.2 to vacate the suit premises and for
other reliefs. He argued that even though defendant No.1 has
contended in his written statement that defendant No.2 has been
removed from the suit premises, defendant No.1 has not given any
details like notice of termination given to defendant No.2, date of
termination of defendant No.2 etc.. He submitted that to ascertain as to
who is presently running/carrying on/conducting business of M/s. India
Restaurant in the suit premises, it is necessary to appoint a court
commissioner by invoking Section 75 and Order 26 Rule 9 of CPC
hence, Notice of Motion may be made absolute. In support of his
argument, learned advocate for the plaintiff has placed reliance on the
observations of Hon'ble Kerala High Court in a case of
Payani Vs.
Chamballikundu reported in
AIR 1996 Ker. 276. I have gone through
said authority wherein, it is held that one of the methods to find out as
to whether or not there is encroachment is to have the local
investigation done by a Competent Commissioner.
4. At the outset, it may be stated here that this suit is not for
removal of encroachment hence, expressing my respects, I would say
that observations of Hon'ble Kearla High Court in a case of
Payani...
cited above is not helpful to the plaintiff in any manner. It is now well
settled that Commissioner cannot be appointed for collecting evidence
for either party. Commissioner under Order 26 Rule 9 of CPC can be
appointed for the purpose of elucidating any matter in dispute and for
other reasons specified in the said Rule. Here, in the matter in hands,
plaintiff has come with a case that defendant No.1 has illegally inducted
defendant No.2 in the suit premises. Suit is filed for seeking mandatory
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relief as mentioned above alongwith other reliefs. Defendant No.1 has
filed his written statement wherein it is contended that defendant No.1
has removed defendant No.2 by termination and now defendant No.2 is
not concerned with the business in the suit premises.
5. Learned advocate for the plaintiff drew my attention
towards some photographs and submitted that somebody else is present
on the counter than defendant No.1. He submitted that in order to
ascertain the true fact as to who is in possession of the suit premises
and who is running the business from the suit premises presently, it is
necessary to appoint a Court Commissioner. As mentioned earlier, Court
Commissioner cannot be appointed for collecting evidence for either
party. It is for the plaintiff to prove his contentions by producing on
record appropriate material. This Notice of Motion is taken out in
Notice of Motion No.1643 of 2017 wherein temporary injunction is
claimed to direct defendant No.2 to forthwith vacate the suit premises.
As mentioned earlier, defendant No.1 has made statement in his written
statement that defendant No.2 has been removed from the suit premises
& plaintiff has not specifically denied the said contention. May that it be
so, appointment of Commissioner as prayed would mean that court
commissioner is appointed for collecting evidence for the plaintiff which
is not permissible and hence, holding that plaintiff is not entitled for the
relief claimed in this Notice of Motion, I pass the following order.
O R D E R
Notice of Motion No. 1560 of 2019 is dismissed.
Date : 11/03/2021. (P.P.RAJVAIDYA)
Dictated on : 11/03/2021. Judge, C.R.No.9
Checked on : 11/03/2021. City Civil Court,
Signed on : 11/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
15.03.2021 at 1.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 11/03/2021.
Order signed by P.O. on 11/03/2021.
Order uploaded on 15/03/2021.
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