1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1218 OF 2009 Milind Chandrashekar Talwalkar & anr......... Petitioner versus Arun Moreshwar Pandit since deceased through L.Rs. Smt. Aparna Arun Pandit & ors ........Respondent. Mr. P.B. Gujar adv. for the Petitioners Mr. V.S. Talkute adv. for the Respondents. 1A to 1C & 2. CORAM: A. P DESHPANDE, J. DATED : 25th November, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 2. All the respondents are served and the position is clear from the earlier order passed by this court on 27­8­2009 directing the placement of this petition for final disposal at the admission stage. 3. The present petitioners are the original plaintiffs who moved an application for appointment of Court Commissioner and the rejection of the said application has given raise to filing of this petition. The petitioners are the owner/landlord of the premises which are in occupation of the respondents. A portion of the 2 building is in occupation of the plaintiffs whereas a portion thereof is in occupation of the respondents. Municipal Council served a notice under section 195 of the Maharashtra Nagar Palika & Nagar Panchayat Act 1965 directing removal of building/structure as the same was found to be in a ruinous state. Section 195 postulates that where any structure/building is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying, the Chief Officer may by written notice require the owner or occupier of the said building or structure to pull down, removal, repair such building or structure....notice under sec 195 was served, and the applicant filed the present suit for ejectment and possession against the defendant with a view to comply with the notice issued by the Municipal council. True it is that prior to the filing of the suit, the plaintiff had inspected the building through a structural engineer whose opinion/report is on record. The respondent/defendant also instituted a suit for declaration and injunction that notice issued by the Municipal Council under sec. 95 is bad in law and consequently relief of injunction is also claimed, seeking to restrain the defendants therein from disturbing the possession of the respondents. The defendants had applied in that suit for appointment of a Commissioner with a view to have the building inspected. The trial court having found that it would be necessary to have elucidation of the matter in dispute, meaning thereby the condition of the building, had appointed a Court Commissioner to inspect the building and submit his report. However, instead of appointing a qualified person, the trial court 3 chose to appoint an advocate for inspecting the condition of the building. I am informed that the advocate who acted as Commissioner has submitted a report. In the present suit, the plaintiff moved an application for appointment of Commissioner with a view to have an engineer appointed. The said application has been rejected by the trial court by holding that no party can collect evidence with the help of the court. 4. The learned counsel for the petitioner has submitted that the trial court has committed a patent illegality in holding that in a situation which is prevailing in the present writ petition, appointment of Commissioner for inspection of the building and its condition, would amount to collecting evidence. Whereas the same would go to eluciate the matter in dispute viz. the condition of the building. The learned counsel for the petitioner has placed reliance on a judgment of the Supreme Court reported in 2008 (10) SCC 225. In an identical set of facts the Supreme court has held that it would be fit and proper that an independent engineer ought to be appointed by the High Court with a view to arrive at a correct finding in regard to the dilapidated and dangerous condition of the building. 5. Per contra the learned counsel for the respondent has submitted that already a report submitted by the advocate, who was appointed as a Court Commissioner to inspect the building has been placed on record of a suit filed by the respondent. In my view to ascertain as to whether condition of the building is 4 dilapidated and/or dangerous an expert in the field ought to have been appointed as a Commissioner and report of the advocate touching the said aspect would not go to assist the court in arriving at a finding. Hence it would be in the interest of justice to appoint an engineer to inspect the suit building. The learned counsel for the respondents then submit that the plaintiff has himself caused damage to the building i.e. Premises in his possession so that he succeed in the suit. This aspect of the matter can be properly gone into by the trial court after parties lead evidence and it has no bearing on the question of appointment of Commissioner for inspection of the building. Having regard to the totality of the facts and circumstances, I am of the clear view that the impugned order deserves to be quashed and set aside and by granting the application moved by the petitioner/plaintiff, an engineer ought to be appointed to inspect the suit building with a view to find out as to whether the building is in dilapidated condition as is contemplated by section 195 of the Act. 5. In the result the writ petition is allowed. The impugned order passed by the trial court dated 8­10­2008 is quashed and set aside. The trial court shall proceed to appoint an engineer to inspect the building as Court Commissioner and call for his report within a stipulated time frame and thereafter proceed with the matter in accordance with the law. Petition is disposed of. 5 (A. P. Deshpande, J.)