Order 5

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000765-2024)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.19
IN
R.A.E.&.R. SUIT NO.276 OF 2024
Mr. Sanjay Devraj Shah .... Plaintiff
Versus
Mr. Subhash Satyanarayan Singh …. Defendant
Mrs. Ketki Belapurkar for M/s. K. R. Parekh & Co., Ld. Advocate for
the plaintiff.
Shri. Suryakant K. Pise for S.K.Pise & Associates, Ld. Advocate for the
defendant.
Coram : Shri. S. N. Godbole, Judge.
C.R.No.34 (BB).
Date :10.09.2025.
ORAL ORDER :-
1. This is an application filed by the plaintiff to appoint the
Architect/Structural Engineer as a Court Commissioner to inspect the
suit premises with regard to present condition of the suit premises, to
take photographs thereof and to submit report.
2. Perused the application, reply Exhibit No.20 filed by the
defendant and rejoinder Exhibit No.23 filed by the plaintiff. Heard
Ld. Advocates for both the sides.
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3. The Ld. Advocate for the plaintiff submitted that the
defendant has taken out application for permission to carry out
plastering work by stating that the condition of the suit premises
alleging to be in a dilapidated condition. The condition of the suit
premises is absolutely perfect and does not require any repairs as
sought. The photographs of the suit premises taken by the plaintiff
on 24.06.2025 and 25.06.2025 show that the condition of the suit
premises does not require the repairs. Therefore, it is necessary to
appoint some fit and proper person to visit the suit premises to know
present condition of the suit premises.
4. The Ld. Advocate for the plaintiff further submitted that,
the plaintiff learnt from reliable sources that if at all this Court grant
permission for repairs under the guise of the same, the defendants
desire to put up an additional floor on the existing structure. The
structure of the suit premises also needs to be evaluated by an
Architect/Structural Engineer. Hence, the application.
5. Per contra, the Ld. Advocate for the defendant objected
the present application and submitted that the plaintiff has made a
frivolous attempt to misguide this Court in spite of knowing the
correct factual position of the property. The application is
misconceived, bad-in-law and not maintainable in the eyes of law. No
case is made out for appointment of a Court Commissioner. A Court
Commissioner cannot be appointed to collect evidence even before
the parties could tender their evidence. The defendant denied that he
made about the condition of the suit premises to be in a dilapidated
condition. The photographs annexed with present application are
outside of the suit premises and not from the inner side of the
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premises. The plaintiff is making attempts to prolong the present
proceedings. Hence, requested to reject the application with costs.
6. Perusal of record, it appears that this suit is filed for
eviction, permanent injunction and mesne profits on the grounds
more particularly mentioned in the plaint. It is matter of record that
the defendant has filed application Exhibit No.14 for granting
permission to carry out repairs in the suit premises.
7. By way of this application, the plaintiff has requested to
appoint Architect/Structural Engineer to inspect the suit premises as
per Order XXVI Rule 9 of the Code of Civil Procedure, 1908. It is
settled that the Court Commissioner can be appointed to make local
investigation for the purpose of elucidating the matter in dispute, or
for ascertaining the market value or amount of mesne profits or
damages. It is important to note here that it is not the case of the
plaintiff that the local investigation is required for elucidating the
matter in disputed or ascertaining the market value or amount of
profits or damages. Further, it is also settled law that the court
commissioner cannot be appointed to collect the evidence. Thus, in
such situation, the provisions of Order XXVI Rule 9 of the Code of
Civil Procedure, 1908 is not useful to the plaintiff to appoint Court
Commissioner.
8. So far as the inspection of premises is concerned, in this
respect Section 28 of Maharashtra Rent Control Act, 1999 is relevant.
As per Section 28 of Maharashtra Rent Control Act, 1999 the landlord
is entitled to inspect the premises let or given on licence, at a
reasonable time after giving prior notice to the tenant, licensee or
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occupier. It is also settled that the landlord can inspect the premises
along with the architect and also take photographs of the same.
9. It appears from the provisions of Section 28 of the said
Act that before inspecting the suit premises, landlord is bound to give
prior notice to the tenant. In this matter, it is not the case of the
plaintiff that he has given notice to the defendant for inspecting the
suit premises. It is also not the case of the plaintiff that he asked for
the inspection to the defendant, but he denied to inspect the same.
Therefore, it is clear from the record that the plaintiff has not given
mandatory prior notice to the defendants for inspecting the suit
premises. Thus, in such circumstances, the plaintiff is not entitled to
get appointed Court Commissioner to inspect the suit premises under
Section 28 of Maharashtra Rent Control Act, 1999. Thus, in such
facts and circumstances of the case, it is not just and proper to
appoint the Court Commissioner in this matter. Therefore, an
application being devoid of merits is liable to be rejected. Hence, I
proceed to pass the following order:-
: O R D E R :
1. Application Exhibit No.19 is rejected.
2. Costs in cause.
Place : Mumbai (S. N. Godbole)
Date : 10.09.2025 Judge,C.R.No.34(BB).
Order Dictated & Typed on : 10.09.2025
Order Checked & Signed on : 10.09.2025
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