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 a witness can be confronted in cross examination by showing document of which he is neither signatory not scribe?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. 

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2009 SCC Online Del 3855

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Whether court can order inspection of property which is not subject matter of suit and are in possession of third parties?

At the outset, it must be mentioned that Rule 7 (a) is not restricted to the subject-matter of the suit. The rule clearly empowers the Court to make an order for inspection of any property, which is the subject - matter of the suit of which any question may arise therein. At this stage, a reference may also be made to Order 18, Rule 18, which provides that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. Similarly, under Order 26, Rule 9, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any mater in dispute, the Court may issue a commission to such person as he thinks fit directing him to make such an investigation and to report thereon to the Court. In view of the aforesaid provision, it is not possible to accept the contention of Mr. Jahagirdar that in exercise of the powers granted to the Court under the Code, the Court is precluded from directing inspection of some other property adjacent to the suit property should such inspection be necessary in the interest of justice. In my opinion, the Scope of Rule 7 (a) is wide enough to confer power on the Court to order inspection even in respect of properties, which are not the subject-matter of the suit; provided such inspection is necessary for determination of the controversy before the Court. At this staged, I may mentioned that is somewhat similar situation Guha, J. of Calcutta High Court has granted inspection of the flats, which were not the subject-matter of suit. Sankar Lal Daga v. Phulchand Agarwalla ILR (1960) 1 Cal 529. In the case, on an application made by the tenant to the Rent controller for fixation of fair rent the landlord applied for a direction on the Inspector to take measurement of an adjacent similar tenancy in the same premises. Access to the premises was, however, refused by the tenant. The question arose whether the Rent Controller could enforce an order for inspection of the adjoining tenancy. The question was answered in the affirmative by the learned Judge. Thus I do not find any error of infirmity in the impugned order. The order is passed within the four corners of the provision of Order 39, Rule 7 (a) and no exception can be taken of such order, which is an interlocutory order.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 2599 of 1995

Decided On: 19.09.1995

Madhukar R. Javle  Vs. Baskar Ramnath Shibad

Hon'ble Judges/Coram:

A.P. Shah, J.

Citation: 1996 (1) MHLJ 245

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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 take surveyor alongwith him for inspection of tenanted premises?

 The plaintiff herein has filed a suit for possession on the ground that the landlord requires the suit premises bonafidely and reasonably for the purpose of immediate demolition which demolition is required to be carried out for constructing a new building as is contemplated under section 16(1)(i) of the Act of 1999. The landlord has to give an undertaking to the Court that the plans and estimates of the new building or new floor or floors to be erected by the landlord include premises for each tenant with the carpet area equivalent to the area of the premises in occupation of the tenant in the building sought to be demolished. According to the plaintiff, carpet area in occupation of defendant no. 4/petitioner no. 2 is 730 sq. ft whereas according to defendant no. 4/petitioner no. 2 the carpet area in her occupation is 1565 sq. ft. While providing the premises in a new building it is the duty of the landlord to provide for the same carpet area. For the said purpose, it would be necessary for the plaintiff to ascertain the exact area in occupation of the defendants and for the said purpose he has right to enter upon the premises and inspect the area in occupation of the defendants. In doing so, he would be entitled to take his own representative to measure the area. The landlord would not be an expert to measure the premises. The person who is expert to carry out measurement such as the surveyor would be required to be taken by the landlord to inspect the premises for performing his obligation of providing the same carpet area in occupation of the tenant in the new building. The landlord will have to satisfy himself of the exact area in occupation of the tenant so as to provide for the same. If Section 28 is interpreted in a manner that the landlord cannot take any other representative along with him, then it would render the said provision ineffective and redundant as the purpose of inspection would not be achieved. Even if to satisfy himself the plaintiff measures the tenanted premises through his surveyor, the said measurement carried out by the surveyor will not be akin to and on the same pedestal as that of the Court Commissioner. The tenant being in occupation of the premises, he can get his area measured through his expert. There is no prohibition for him. In the present case, the surveyor allowed to be taken by the plaintiff is not in the capacity of a Court Commissioner but the Court has only granted leave allowing the plaintiff to exercise his right under section 28 as the suit is pending before the Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2677 of 2013

Decided On: 23.08.2013

 Suresh Manoharlal Jumani and Shobha Jumani Vs. Aasia Management & Consultancy Pvt. Ltd.

Hon'ble Judges/Coram:

S.V. Gangapurwala, J.

Citation: 2013(5) MHLJ 905

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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 court can appoint commissioner for inspection of tenanted premises?

When the condition of the structures is at issue, or may be at issue, a commission for local investigation cannot be issued under Order 26, Rule 9 of the Code and the proper procedure is to apply the provisions of Order 39, Rule 7 of the Code. This principle has been laid down by Manmatha Nath Mukherji, J., in the case reported in MANU/WB/0256/1932. Moreover, the provisions of Rr. 7 and 8 of Order 39 of the Code are clear on the point. Rule 7 (1) says that the Court may make an order for inspection of any property which is the subject matter of such suit or as to which any question may arise therein. This rule has to be read with Rule 8 (1) thereof, for that rule says that an application by the plaintiff for an order under Rule 7 may be made at any time after the institution of the suit. Hence the Court is authorised to issue a commission for inspection at any stage of the suit and even after the plaint is filed. So the objection raised on behalf of the petitioners that the prayer for commission is premature is without any substance. Moreover, in view of the provisions of Section 13(1)(ff) of the Best Bengal Premises Tenancy Act read with Rule 7 (1) (a), the other points raised in the application for commission may arise in the suit for determination, though no written statement is filed. Hence an inspection is called for, and I find accordingly.

IN THE HIGH COURT OF CALCUTTA

C.R. No. 2229 of 1980

Decided On: 23.04.1981

 Nitindra Nath Roy Chowdhury and Ors. Vs. Subhas Ch. Kar

Hon'ble Judges/Coram:

B.N. Maitra, J.

Citation : AIR 1981 Cal 319

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Whether it is permissible for landlord to take Architect with him at the time of inspection of tenanted premises?

For the said purpose, it would be necessary for the plaintiff to ascertain the exact area in occupation of the defendants and for the said purpose he has right to enter upon the premises and inspect the area in occupation of the defendants. In doing so, he would be entitled to take his own representative to measure the area. The landlord would not be an expert to measure the premises. The person who is expert to carry out measurement such as the surveyor would be required to be taken by the landlord to inspect the premises for performing his obligation of providing the same carpet area in occupation of the tenant in the new building. The landlord will have to satisfy himself of the exact area in occupation of the tenant so as to provide for the same. If Section 28 is interpreted in a manner that the landlord cannot take any other representative along with him, then it would render the said provision ineffective and redundant as the purpose of inspection would not be achieved. Even if to satisfy himself the plaintiff measures the tenanted premises through his surveyor, the said measurement carried out by the surveyor will not be akin to and on the same pedestal as that of the Court Commissioner. The tenant being in occupation of the premises, he can get his area measured through his expert. There is no prohibition for him. In the present case, the surveyor allowed to be taken by the plaintiff is not in the capacity of a Court Commissioner but the Court has only granted leave allowing the plaintiff to exercise his right under section 28 as the suit is pending before the Court.

17. 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.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2677 of 2013

Decided On: 23.08.2013

 Suresh Manoharlal Jumani Vs. Aasia Management & Consultancy Pvt. Ltd.

Hon'ble Judges/Coram:

S.V. Gangapurwala, J.

Citation:2014(1) BomCR88

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Whether it is permissible for landlord to inspect tenanted premises?

 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) Bom Rent Cases 202

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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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Construction permission can not be cancelled on basis of inspection extracts of Municipal Corporation.

 The Repair Board was moved by a complainant. The grievance of the Petitioners is that the complainant was motivated by an animus of a personal nature against the Petitioners. Once circumstances were drawn to the notice of the Repair Board warranting further enquiry, it was justified in verifying the basis on which the no objection certificate was issued in the first instance. For the reasons that we have indicated, the Repair Board would not be correct in revoking the list certified earlier purely on the basis of the inspection extracts of 

the Municipal Corporation. That is one aspect which can be borne in mind by the Repair Board but it would have to be considered together with all the documentary material that may be available. The Petitioners have relied upon other documentary evidence including the records of the Registrar of Companies, Licenses under the Shops and Establishments Act, Sales Tax and Service Tax documents, Registration papers, Bank statements and Income Tax returns and PAN cards. The Petitioners would be at liberty to produce them before the Chief Officer of the Repair Board. The impugned communication dated 10 November 2008 has been issued purely on the basis of inspection extract of the Municipal Corporation.

Bombay High Court

Dahyabhai Papers & Boards Pvt.Ltd vs Maharashtra Housing And Area ... on 21 August, 2012

Bench: Dr. D.Y. Chandrachud, A.A. Sayed

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