Dismissed

Mr. Hemant Radhakrishna Sapale v. Mrs. Bhavna Sanjay Vora

Bombay HC5 Sept 2013WP/1426/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging orders rejecting an application to amend a prayer for appointing a Court Commissioner. The Court held the original procedural decisions were correct, noting that evidence regarding disposed doors and windows is for the pleader to bring, not a Commissioner. The legal principles are reserved for the trial court during the main suit.

What did the court decide?

The Writ Petition is dismissed. The trial court is directed to consider the application for the Court Commissioner uninfluenced by the impugned orders.

Mr. Hemant Radhakrishna Sapale Vs Mrs. Bhavna… — Civil Procedure and Limitation | Bombay HC (2013)

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13.wp.1426.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1426 OF 2013

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Mr.Hemant Radhakrishna Sapale

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.. Petitioner

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Vs.

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Mrs.Bhavna Sanjay Vora

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.. Respondent

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Mr. Hemant R.Sapale, Petitioner-in-person. Mr.Amit H.Yadav, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 05^th September, 2013

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P.C. :

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. Heard Mr.Hemant R.Sapale, party- in-person and Mr.Amit

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Yadav, learned Counsel for respondent at length.

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By this petition under Article 226 of the Constitution of India, plaintiff has challenged the judgment and order dated 31/08/2012 passed by the learned Judge, Court Room No.33 of Court of Small Causes at Bombay below Exhibit 23 in R.A.E & R Suit No. 156/219 of 2000 as also the judgment and order dated 25/10/2012 passed by the Appellate Bench of Small Causes Court at Bombay in Revision Application No. 110 of 2012. By these orders, the Courts below rejected the application made by the petitioner at Exhibit 23 for amending the application at Exhibit 14 made by the petitioner for appointment of Court Commissioner.

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Mr.Sapale invited my attention to the copy of the plaint in R.A.E & R Suit No. 156/219 of 2010 and in particular, paragraph Nos. 21 and 25 there of. He submitted that in paragraph 21, the plaintiff has specifically asserted that the defendant has changed the user of the suit premises from residential to commercial, has caused waste, damage and injury to the suit premises, has carried out additions and alterations and erected permanent structures in the suit premises without the permission, consent and knowledge of the plaintiff. Defendant has disposed of 6'' thick teak wood door and two windows of the suit premises. In paragraph 25, it is asserted that it is necessary to appoint a Court Commissioner to bring on record the condition of the suit premises, the activities carried on by the defendant therein, waste and loss caused to the suit premises and adjacent tenements. It is also necessary to bring on record current price of the wood door and two windows among other things. Mr.Sapale invited my attention to application at Exhibit 14 made by the plaintiff on 16/09/2011 for appointment of Court Commissioner to visit the suit premises and submit report on the nature, condition and extent of various additions, alterations and unauthorised constructions made by the defendant with full particulars, measurements and details thereof and also by taking photographs of the said additions and alterations and illegal constructions. Pending that application, the plaintiff filed application at Exhibit 23 on 24/01/2012 and sought to substitute prayer 4(a).

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Apart from praying for appointment of a Court Commissioner for visiting the suit premises and for bringing on record the nature, condition and extent of additions, alterations and unauthorised constructions made by the defendant in and out side the suit premises with full particulars and measurements and details thereof and also by taking photographs, he has prayed for appointment of a Court Commissioner for finding out sale of thick teak wooden doors and two windows of the suit premises and for determining rent with interest @ 15% p.a. from the date of the filing of the suit till the defendant handed over possession to the plaintiff.

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The defendant has resisted the application at Exhibit 23, for amendment of application at Exhibit 14, by filing reply. The petitioner has filed rejoinder to the defendant's affidavit-in-reply dated 23/02/2012.

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By impugned orders, the Courts below rejected the application at Exhibit 23 made by the petitioner for amendment of the application at Exhibit 14.

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Mr.Sapale submitted that the application at Exhibit 23 for amendment of the application at Exhibit 14 ought to have been allowed by the Courts below. The petitioner has laid necessary foundation in the plaint and consistent with the case made out therein, he has applied for the amendment of application at Exhibit 14. The Courts below ought to have allowed that application and after

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amendment is allowed, the Courts below would undoubtedly consider application at Exhibit 14 as to whether the petitioner has made out the case for appointment of Court Commissioner and for various reliefs.

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On the other hand, Mr. Yadav supported the impugned orders. He invited my attention to the written statement filed by the defendant and in particular, paragraph 22 & 26 thereof. In paragraph 22, the defendant has denied the contentions raised by the plaintiff in paragraph 21 of the plaint. In paragraph 26, the defendant has asserted that no case is made out for appointment of Commissioner.

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I have considered the rival submissions made by the petitioner-in-person and learned Counsel appearing for the respondent. I have also perused the material on record. As noted earlier, the plaintiff has filed suit against the defendant for eviction on various grounds including on the ground that defendant has carried out additions and alterations of permanent nature without consent and knowledge of the plaintiff. Pending that suit, the plaintiff took out application at Exhibit 14 for appointment of Court Commissioner. Admittedly, that application is pending. During pendency of the application, the plaintiff has filed application at Exhibit 23 for amending application at Exhibit 14. That application is resisted by the defendant by filing reply. By order dated 31/08/2012, the learned trial Judge rejected that application. In paragraph 4 of the order, the learned trial Judge observed that by proposed amendment, the

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plaintiff wants the Commissioner to visit the suit premises and submit report in respect of teak wood doors and two windows of the suit premises. The learned trial Judge observed that it is not understandable how the Commissioner would be in a position to file report in respect of the teak wood doors and windows of the suit premises. Aggrieved by this decision, the petitioner filed revision before the Appellate Bench of Court of Small Causes at Bombay. By order dated 25/10/2012, the Appellate Bench dismissed that revision application. In paragraph 7 of the impugned order, the Appellate Bench observed that trial Court has rightly come to the conclusion that Commissioner cannot be asked to perform the task pertaining to sale of teak wood doors and windows of the suit premises and submit the report on that aspect. It was further observed that plaintiff would be at liberty to lead evidence in the matter pertaining to this issue.

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After hearing the petitioner-in-person and after

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considering the material on record, I do not find that the Courts below committed any error in passing the impugned orders. As noted earlier, in paragraph Nos. 21 & 25 of the plaint, plaintiff has undoubtedly asserted that defendant has disposed of 6'' teak wood door and 2 windows. This fact is denied by the defendant. Under these circumstances, the Court Commissioner cannot be appointed to collect the evidence and submit report on this aspect. The Appellate Bench rightly observed that plaintiff would be at liberty to lead evidence on

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this aspect for which the appointment of Commissioner is not necessary. I do not find that the Courts below committed any error in rejecting the application. The impugned orders are interlocutory. It is expressly made clear that where a decree is appealed from, any error, defect or irregularity in the impugned order, affecting the decision of

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the case, may be set forth as a ground of objection in the memorandum of appeal as per section 105(1) of C.P.C.

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Subject to above, the Writ Petition fails and the same is dismissed.

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The learned trial Judge will decide the application at Exhibit 14 uninfluenced by observations made in the impugned orders and also in the present order.

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Order accordingly.

Mr. Hemant Radhakrishna Sapale v. Mrs. Bhavna Sanjay Vora

Case brief

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What did the court decide?

Mr. Hemant Radhakrishna Sapale v. Mrs. Bhavna Sanjay Vora

Case brief

What is this about?

What did the court decide?

What the court decided

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