IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No. 2056 of 2007 in Suit No. 339 of 1991 M.M.Vakil and others ..Plaintiffs vs. S.Anklesaria and others ..Respondents Mr.V.Thakkar i/b Gagrats for plaintiffs. Mr.R.M.Bhagalia i/b Bhate and Associates for defendant no.8(a). CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 11th April, 2008 11th April, 2008 11th April, 2008 P.C. P.C. P.C. 1. This is a chamber summons by defendant no.8(a) in suit No.339 of 1991. 2. The Chamber Summons dated 18th December, 2007 is directed towards 5 persons including the Commissioner for Taking Accounts. The principal prayer therein is to quash and set aside the order of the Commissioner/Report dated 30th November, 2007 which is annexed as Exhibit A to the affidavit in support. 3. The Chamber Summons is by defendant no.8(a). The title of the chamber summons itself shows that the contesting parties are the original plaintiffs whereas defendant nos. 1 to 5 and 8 have been deleted for several reasons and as stated in the orders of this Court. 4. Mr.Bhagalia after taking instructions makes a statement that for the purpose of the present chamber summons other unserved defendants are also deleted in as much as the contest is only between the original plaintiff and defendant no.8(a). Commissioner is also not a party whose presence is necessary for deciding this chamber summons. 5. It is not necessary to make a detailed reference to the rival contentions in as much as the suit has been decreed on 5th April, 2006 and eviction of defendant nos. 6, 7 and 8(a) has been ordered coupled with the enquiry into mesne profits. The judgments have been challenged by separate appeal and as far as the present applicant is concerned his Appeal is Appeal No.457 of 2006. 6. It is the case of both sides that the appeal is admitted but enquiry into mesne profits has not been stayed. It is in such circumstances that the matter was placed before Commissioner for Taking Accounts for enquiry into mesne profits. 7. My attention is invited to the voluminous record before the Commissioner in the form of evidence and valuation report. 8. After the matter was argued for some time, both sides do not dispute that the report of the Commissioner determines the mesne profit on the basis that defendant no.8(a) is occupying 300 sq.ft. of the area and is also enjoying some common amenities. The Commissioner has determined the mesne profits at the rate of Rs.30/- per sq.ft. for the area in occupation. He has determined the mesne profits in two slabs, one for the period February, 1991 to May 2006 and another from June, 2006 to November, 2007. For earlier period, the rate is Rs.30/- per sq.ft. whereas for the subsequent period it is Rs.50/- per sq.ft. It is in such circumstances that excluding society and electricity charges defendant no.8(a) has been directed to pay Rs.19,26,000/- The Commissioner has disbelieved the valuation report which was placed on record by the original plaintiff. He has relied upon one certificate issued by D.H.F.Realtors. A perusal of the report shows that it contains narration of facts leading upto the suit and thereafter the area in occupation of defendant no.8a) and reference is made to some material produced. However, there is no reasoning as to why the valuation report is disbelieved or why the rate is determined as above. 9. Mr.Bhagalia’s submission is that the rate is exorbitant and the Commissioner did not take into consideration several aspects including that defendant no.8(a) has not been given exclusive use of the common areas. Further she does not use them as frequently as is urged. Considering the area in her occupation, the year of construction, present status, the quantum should not have been the one determined. However, Mr.Thakkar on the other hand disputes this and states that the valuation should have been on the basis of the valuation report and other material produced by the original plaintiffs. 10. After the matter was argued for some time, both sides agree that the order of the Commissioner contained in the report dated 30th November, 2007 be set aside and the matter be remitted back to the Commissioner for deciding the quantum/rate of mesne profits. Both sides would be at liberty to place on record further material in the form of affidavit of witness/valuer. This would be in addition to whatever material is already on record before the Commissioner. Needless to state that whenever both sides place the affidavits/oral/written submissions, the Commissioner would take them on record subject to the veracity of the contents and truth being tested by affording an opportunity of cross examination to each other. Once the said exercise is complete the Commissioner to render findings afresh and without being influenced by his earlier observations. The Commissioner is expected to apply independent mind and assign cogent and satisfactory reasons for the conclusions that would be arrived at by him. All contentions of both sides are expressly kept open and no opinion is expressed by this Court thereon. Both sides to appear before the Commissioner on 30th April, 2008 before which date the affidavit/report should be filed and copies exchanged with each other. The Commissioner then to give opportunity as directed above and hear the oral arguments. He should render findings afresh as expeditiously as possible and in any event before 30th June, 2008. The Commissioner to consider visiting the site personally if so requested by the parties. 11. Chamber summons is disposed of inthe above terms with no order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)