Bombay HC: Appointment of court commissioner can not be allowed for inspection of additions and alterations made in premises during pendancy of suit

It is well settled that what would be relevant for an eviction suit, and

relevant for the suit instituted by the petitioners/plaintiffs, is the principal

cause of action which has accrued/existed to the petitioners/plaintiffs on the

date of institution of suit so as to seek eviction of the respondent/tenant on

grounds as permissible under the Rent Act. No doubt, the provisions of

Section 28 of the Maharashtra Rent Control Act permits inspection of the

premises by the landlord after reasonable notice to the tenant, there is

nothing on record to show such requests for suit inspection of the suit

premises in a manner known to Section 28, was ever made and denied by the

respondent. It is clear that what has been sought by the petitioners/plaintiffs

is something different which cannot be merely conceived under Section 28,

namely, a request made to the Court to appoint a Commissioner and make a

report which would be surely an attempt to gather fresh evidence. The

record clearly indicates that at all material times such a inspection was

permitted by the respondents/defendants.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 7245 OF 2019

WITH

CIVIL APPLICATION NO.1482 OF 2019

IN

WRIT PETITION NO. 7245 OF 2019

Smt. Vasanti Gajanan Nerurkar  V/s.  Sudhir Vasu Shetty

CORAM : G.S.KULKARNI, J.

DATE : 25 September, 2019

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Whether it is permissible for landlord to inspect tenanted premises at any stage of proceeding?

The contention that now the matter is fixed for framing issues and therefore the landlord wants to collect the material for the purpose of his case and this amounts to collection of material are unacceptable. There is no restriction whatsoever created by the legislature whereby the inspection of the premises by the landlord must be alone. The landlord can in a given case inspect the premises alone and or with architect or with such other person, subject to notice. I see there is no reason such application should be rejected. In the present case as noted above it was not an application under Order 26 of Civil Procedure Code (CPC) after framing of the issues wherein the landlord applied for appointment of a commissioner. If Section 28 nowhere restricts, I see there is no reason to reject the case of the landlord considering the scope and purpose of the Order 26 of the CPC.

5. According to me Section 28 of the Act is very clear whereby the landlord at any point of time after issuing notice can inspect the premises alone or with an architect or other such person. Taking all this into account in my view, the impugned order dated 28.8.2008 deserves to be quashed and set aside to the extent as referred above. The application filed by the landlord under Section 28 is allowed. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7181 of 2008

Decided On: 04.12.2008

 Empeegee Portfolio Services Pvt. Ltd. Vs. Sharada Navinchandra Shah

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2009 AIR 1277 Bom

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Whether landlord can inspect tenanted premises through court commissioner?

The basic dispute between the landlord and the tenant is now governed by the Maharashtra Rent Control ( 2 ) Act-1999 ("Mah. Rent Act"). The relevant Section is as under:-

"28:-

28:- Inspection of Premises:- The landlord shall be entitled to inspect the premises let or given on licence, at a reasonable time after giving prior notice to the tenant, licensee or occupier."

4. which The landlord can take inspection of his is let out or given on license at a property reasonable time after giving prior notice to the tenant/licensee or occupier. If that is so, there is no reason to hold that such landlord cannot take inspection at any stage of the proceeding. The requirement is of the prior notice.

5. I am of the view that the Inspection just cannot be a mere formality of a visual inspection of the premises. It is always with some purpose and intention. The landlord in a given case may take with him the competent person including architect or a person who can record the condition of the premises which includes the Commissioner appointed by the Court ( 3 ) or such other person. Once there is a clear and specific provision provided under the Mah.Rent Act, the general provision of appointment of C.P.C. cannot be read into it to restrict the right of the Landlord to inspect the premises. There may be joint inspection also.

6. In this background, in such proceedings when the landlord moved the application for appointment of Commissioner for proper measurements and inspection of the premises, it just cannot be treated an application as contended under Order 26 Rule 1 of the CPC only.

7. In absence of Section 28, the submission as raised could have been taken note of, in view of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare & Ors.

2001(2) Mh.L.J. 959, but considering the scheme of Mah. Rent Act, specially the Section referred above, I see there is no reason to restrict the landlord's right to inspect the premises though the court Commissioner as done in the present case. Such report may be subject to challenge, unless agreed or approved by the otherside.

Bombay High Court

Smt.Kamlabai Laxman Mutraj vs Bherumal Verimal Haran on 19 December, 2008

Bench: Anoop V.Mohta

 WRIT PETITION NO. 8318 OF 2008


Citation:2009(2) MHLJ 213Bom

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Whether it can be said that court has appointed commissioner if landlord is conducting inspection of premises with leave of court?

In the present case, the plaintiff had given a notice to the
defendant to allow him to inspect the premises along with his
architect/surveyor (the said fact is denied by the defendants) and
as the suit is pending the plaintiff thought it fit to obtain leave of

the Court and the same has been granted by the Court. However,
the said order of the Court cannot be construed of having
appointed a Court Commissioner nor the measurement carried
out by the plaintiff through his surveyor would be construed as a
measurement carried out by the Court Commissioner. The
measurement carried out by the surveyor of the plaintiff would
be for satisfaction of the plaintiff to ascertain exact area in
occupation of tenant. It will be for the plaintiff to prove his case
with all corroborative evidence.The learned Single Judge of this Court in a case of Smt Kamlabai Laxman Mutraj (supra) has also held that under section 28 of the Act the landlord can be accompanied by hisArchitect or other representative to
take measurement of the tenanted premises.
In view of the aforesaid conspectus of the matter, the order

of the trial Court does not require any interference.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2677 OF 2013

Suresh Manoharlal Jumani Vs  Aasia Management &
Consultancy Pvt Ltd, 

CORAM : S.V.GANGAPURWALA, J.

PRONOUNCED ON:23/08/2013

Citation;(2013) 6 AIIMR 117,2013(5) MHLJ905

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