Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI
NOTICE OF MOTION NO.3143 OF 2019
IN
L.C. SUIT NO.1704 OF 2018
Hiralal Rajaram Yadav ]... Plaintiff
Versus
The Municipal Corporation of Greater ]
Mumbai. ]... Defendants
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 3rd October, 2019.
Ms. M.V. Holamagi, Advocate for plaintiff.
Mr. Santosh Mhatre, Advocate for M.C.G.M./defendant.
O R D E R
1. By this notice of motion, the plaintiff has sought appointment of
a competent person as Court Commissioner to visit the site and give
complete details with regard to other premises available as stated.
2. The affidavit in support of Notice of Motion states that
defendants are trying to demolish a Shiv Mandir which is more than
100 years old. Plaintiff had taken out a Chamber Summons and adopt
the contents of affidavit in its support. While considering said Chamber
CNR NO.: MHCC010085552019
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2 NM 3143/19 in
L.C. Suit 1704/18
Summons this Court has granted liberty to apply for Court
Commissioner separately. Defendants are acting high handedly. They
are not acting against the new structures constructed unauthorizedly
and are trying to demolish old temple.
3. The Affidavit in support of draft Chamber Summons disposed of
by an order dated 24.6.2019, excluding the statement not relevant for
the purpose of this Notice of Motion, states that, it was necessary to
appoint a Court Commissioner to visit the site and give detailed report
and all structures and Mandir etc. in the vicinity.
4. Defendant did not file reply.
5. Perused. Heard.
6. The purpose of appointment of Court Commissioner is not to
collect the evidence which can be otherwise laid before the Court.
Whenever a party to the suit seeks appointment of Court
Commissioner, it is necessary for such party to mention in the
application, the purpose of appointment of Court Commissioner and to
mention the points on which the report needs to be called. This is
necessary to scrutinize whether the application falls within the ambit of
provisions of Order 26 Rule 9 of CPC. In absence of such specification,
a vague request cannot be accepted by the Court.
7. In this case the plaintiff has not mentioned for what purpose the
Court Commissioner needs to be appointed and on what point the
report of Court Commissioner is required, so as to assess whether the
Court Commissioner needs to be appointed or not. While disposing of
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3 NM 3143/19 in
L.C. Suit 1704/18
earlier Chamber summons this Court has observed that request for
appointment of Court commissioner is as vague as possible. The
position is not changed even while considering the present notice of
motion.
8. In the result, I hold that Notice of Motion cannot be allowed.
Hence the order:
ORDER
1. Notice of Motion No.3143/19 is dismissed with costs.
(A.N. MARE)
Judge,
03.10.2019 City Civil Court, Mumbai.
Dictated On : 03.10.2019
Transcribed on : 14.10.2019
HHJ Signed on : 14.10.2019
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4 NM 3143/19 in
L.C. Suit 1704/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.10.2019 12.33 p.m. Mahendrasing D. Patil (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE (CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
03.10.2019
JUDGEMENT /ORDER signed by
P.O. on
14.10.2019
JUDGEMENT /ORDER uploaded on 18.10.2019
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