Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 3688 of 2019
IN
L.C.SUIT NO. 814 OF 2019
(CNR No.MHCC010100392019)
Mr.Vikas Yashwant Maitandel )...Plaintiff
Versus
Municipal Corporation of Greater Mumbai )...Defendant.
Appearance:
Adv. Mr. Sarogi for plaintiff.
Adv. Mr.Kumawat for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 20/11/2019(C.R.No.06)
O R D E R
This notice of motion taken out by the defendant Municipal
Corporation for appointing of the Court Commissioner. This notice of
motion resisted on behalf of the plaintiff by filing his reply. Read the
present notice of motion and say thereon. Heard both the learned
counsels on behalf of both the sides at length. Perused the record.
2. The learned counsel on behalf of the defendant Municipal
Corporation submitted that the defendants have denied each and
every statements, averments, and allegations made by the plaintiff
against the defendants in the plaint. The defendant Municipal
Corporation appeared and filed the photographs and put the true facts
before the Hon'ble Court and the defendant filed affidavit on
12/03/2019 along with photographs and put the true facts which are
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not as per the case of the plaintiff and also falsify the photographs filed
by the plaintiff. After pointing out the malafide act of plaintiff and
playing fraud with Court by misleading the Hon'ble Court by producing
the false documents the plaintiff started to collect false evidence and
making false allegations against the officer of the defendants who is
performing his duty. When the officer of the defendants thrown light on
truth, the plaintiff filed false affidavits of 14 persons along with notice
of motion and chamber summons, which are manipulated, false,
concocted and hence the testimony of the same is required on be tested
and hence they required to call for cross examination.
3. The learned advocate on behalf of the defendant Corporation has
further submitted that the Court Commissioner may kindly appoint to
inspect the site under reference i.e. notice structure, to take
measurement of notice structure, to take the photographs of notice
structure and to submit his report in detailed shown the suit premises
building alongwith sketch showing factual position of suit premises as it
is and notice structure.
4. The learned advocate on behalf of the plaintiff has argued that by
appointing of the Court Commissioner none can be permitted to create
evidence in his favour which is well settled provisions of law. He has
further submitted that a careful perusal of the records of this Hon'ble
Court would show that the deponent of the Affidavit had demanded
necessary bribe from the plaintiff in support of which many persons
have filed their Affidavit. In view of the said facts, it becomes crystal
clear that the present notice of motion have been taken out only to
overcome the said serious offence committed by the deponent of the
Affidavit. On these grounds, learned advocate on behalf of plaintiff has
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submitted that the notice of motion taken out by the defendant
Corporation deserves to be dismissed.
5. The learned advocate on behalf of the plaintiff has placed his
reliance on the judgment reported in MANU/MH/1854/2011, in the
case of Syed.Mushtatque Ahmad Syed. Ismail and Ors. Vs. Syed
Ashique Ali Khan Haidar Ali. The Hon'ble Bombay High Court
( Nagpur Bench) held that, " it is well settled by catena of judgment of
this Court as well as the Apex Court that the Court Commissioner
cannot be appointed to collect evidence.''
6. After hearing the arguments advanced on behalf of both the sides
at length, after scrutiny of the present notice of motion and reply of the
plaintiff thereon, after perusal of the record, it appears that under the
present suit the plaintiff has challenged the notice dated 02/03/2019
under section 354 A of MMC Act issued by the defendant Corporation to
the plaintiff in respect of the suit premises and Speaking order dated
05/03/2019. It is pertinent to note that the notice under challenge
dated 02/03/2019, the defendant Municipal Corporation have
mentioned the alleged unauthorised structure in the said notice of
motion. Moreover, the defendant/Corporation has every right to inspect
the suit building and take the measurement and photographs of the suit
building. The defendant Municipal Corporation can prove the
unauthorised construction and legality of the notice and speaking order
under challenge by adducing evidence. The defendant Municipal
Corporation is not entitled to collect the evidence by appointing Court
Commissioner. By making this application for appointment of
Commissioner, the defendant want to create the evidence.
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7. I have gone through above citation referred on behalf of the
plaintiff, it appears that the ratio held in the citations is perfectly
applicable to the present case in favour of the plaintiff. The defendant
Municipal Corporation is not entitled to appoint Court Commissioner.
Therefore, the present notice of motion taken out by the defendant
deserves to be rejected. Hence, I have proceed to pass following order.
ORDER
Defendant's notice of motion no. 3688/19 is hereby rejected.
Date : 20/11/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on :20/11/2019
Transcribed on : 21/11/2019
Signed by HHJ : 28/11/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
28/11/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
20/11/2019
Judgment/order signed by P.O on 22/11/2019
Judgment/order uploaded on 28/11/2019
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