1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO 249 OF 2009 WITH CIVIL APPLICATION NO 291 OF 2009 Venkatesh Ramanna Prabhu .. Appellant V/s. M C G M & Another .. Respondents Shri. J.S. Kini i/b Suresh Dubey for the Appellant Smt. K.K. Soraan for the Respondent No. 1 Smt. Sunita R. Tiwari for the Respondent No. 2 Coram : R.M. Savant, J. Date : 26th February, 2009. P.C.: 1. This Appeal filed by the original Plaintiff takes exception to the order dated 12.02.2009 passed by the Ld. Judge of the City Civil Court by which order, the Notice of Motion filed by the Defendant No. 2 in the suit for appointment of commissioner to submit a report as regards the structural stability of the suit premises came to be allowed. Rma AO479209260209.sxw 2 2. The Appellant has filed Long Cause suit No. 21 of 2009 challenging the notice issued by the Respondent No. 1 – Municipal Corporation under Section 351 of MMC Act alleging unauthorized encroachment under RCC staircase with BM wall and fixing of iron grill with area adm 6.40 X 1.06. The Appellant has filed reply to the said notice along with the documents. The said reply was considered by the competent authority of Respondent No. 1 and vide order dated 27.12.2008 has rejected the contentions raised in the said reply and the Appellant was called upon to remove the offending structure within 15 days or else, the Respondent No. 1 will demolish the same. In the said suit, the Appellant moved a Notice of Motion for ad-interim reliefs. In the said Motion, ad-interim relief by way of status quo was granted. The Respondent No. 2 who is the owner and landlord of the structure in question has filed Notice of Motion numbered as Ex. 5 for appointment of the court commissioner. The appointment of the court commissioner has been made as according to the said Respondent No. 2 the very stability of the structure is in question. Earlier also, even in suit No. 3205 of 2003, a finding has been recorded that on account of unauthorized structure which was there in the building in question, it Rma AO479209260209.sxw 3 is resulted in weakening the building The learned Judge was therefore, of the view that it was necessary to bring on record a true picture of the suit structure to elucidate the matter in controversy. The learned Judge was of the view that the stability of the suit structure and the effect of the staircase on the structural stability of the building cannot be ascertained without the report of the structural engineer. The Notice of Motion filed by the Defendant No. 2 was therefore, allowed in terms of the operative part of the impugned order dated 12.02.2009. I have heard the learned counsel for the parties and perused the impugned order. In the light of the controversy involved, the appointment of a structural engineer as court commissioner cannot be faulted with. 3. The learned counsel for the Defendant No. 2 i.e the Respondent No. 2 herein makes a statement that as per her information, the structural Engineer who was appointed as a Court Commissioner has filed his report yesterday in the City Civil Court. Considering the aforesaid facts, no case for interference is made out. The Appeal from Order is accordingly dismissed. Rma AO479209260209.sxw 4 4. In view of dismissal of above Appeal from Order, the Civil Application No 291 of 2009 does not survive and the same is accordingly disposed of. (R.M. Savant, J) Rma AO479209260209.sxw