1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1241 OF 2005 IN SUIT NO.565 OF 2002 alongwith the Suit no.1340 of 1994 Smt.Maniben Chandrakant Dalal. ... Plaintiff vs. Rita K. Chheda. ... Defendant. --- Mr.K.L.Parab, for Plaintiff. Mr.Uday Bobade with Mohan Tekavde & Ms.Swati Tekavde, for Defendant. CORAM: D.K.DESHMUKH,J. DATED: 8th November,2006.. P.C.:- 1. This is a notice of motion taken out by the plaintiff. By prayer clause (a) the plaintiff seeks order of appointment of 2 commissioner. It is clear that the plaintiff wants commissioner to be appointed for collecting evidence. The settled law is that the Commissioner cannot be appointed by Court for collecting evidence. It is for the plaintiff to lead evidence to establish what is the situation of the property. Therefore, no relief can be granted in terms of prayer clause (a). 2. By prayer clause (c) the plaintiff is seeking order of appointment of Court Receiver. Admittedly, the defendant is a tenant. Even assuming that the tenant is not actually in possession and he has inducted a sub- tenant then also the tenant is in constructive possession of the premises. In view of Sub-Rule 2 of Rule 1 of Order 40 of the Civil Procedure Code, when the plaintiff does not have present right of possession, Receiver cannot be appointed. Therefore, no order in terms of prayer clause (c) can be granted. 3. By prayer clause (e) the plaintiff is seeking direction against the defendant to deposit the document Ex.H Index II. The learned Counsel appearing for defendant states that the document is already seized by the police authority and is in the criminal Court where the proceedings between the parties are pending. In this situation therefore, there is no question of making any order in terms of prayer clause (e). 3 4. So far as relief claimed by prayer clause (f) is concerned, the learned Counsel appearing for defendant states that without prejudice to defendant's rights and contention, until further orders of this Court the defendant shall not part with possession of the property and shall not create third party interest in the property. The Statement is accepted. In view of this statement, no order in terms of prayer clause (f) are necessary. 5. So far as reliefs claimed by the other prayer clauses the learned Counsel appearing for plaintiff states that he is not pressing those prayers. The notice of motion is disposed of. ---