1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5508 OF 2008 Mrs.Malti H. Purandare. ..Petitioner. V/s. Mr.Karamshi Raishi Punshi Dhedhia. ..Respondent. Mr.Khan Javed Akhtar for Petitioner. Mr.R.J.Thakkar for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JULY 28, 2008. DATE : JULY 28, 2008. DATE : JULY 28, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. This Petition takes exception to the Judgment and Order passed by the Small Causes Court dated 9th June, 2008 on Application Exh.12 in the pending suit. Two reliefs were claimed in the said Application. The first relief was for appointment of Commissioner to visit and inspect the suit premises and to submit report. That relief has been rightly rejected by the Court below on the finding that Court Commissioner cannot be appointed for collection of evidence for Plaintiff. That view taken by the Court below is the settled legal position. Hence, no interference with that finding is warranted. 2 2. The second relief claimed in the Application was for direction to the Senior Inspector of Police, Shivaji Park Police Station, Dadar(West), Mumbai to provide to Plaintiff the police protection for implementation and enforcement of orders dated 2-6-2008 passed by the same Court. Insofar as this relief is concerned, in paragraph-9 of the impugned Judgment, the Court below has noted as of fact that the Defendants in his reply affidavit has clearly asserted that the repairing work was already completed before the Order of status quo was passed. That fact has not been controverted by the Petitioner by filing any further affidavit or producing any material to question the correctness thereof. In other words, the grievance of the Petitioner that inspite of the order of status quo, the Respondent was continuing the repairing work, was ill-advised and unsubstantiated. For that reason the Court has rejected even this relief claimed by the Petitioner. Question of providing police protection would have arisen only if the work was still continued inspite of the Order of status quo. 3. Taking any view of the matter, it is not possible to overturn the discretionary order passed by the Court below which is founded on cogent facts 3 recorded in the impugned decision itself. 4. The argument of the Petitioner that the Petitioner had relied on photographs, which would indicate that repairing work was in progress clearly overlooks that the crucial question to be considered for the purpose of this Application is whether after order of status quo passed on 2nd June, 2008, the Respondent continued with the repair work. The finding recorded in the impugned order is that the Court below has accepted version of the Respondent that no such work was in progress after the Order of status quo. As aforesaid, that finding will have to be upheld as it remained uncontroverted by the Petitioner. 5. Suffice it to observe that if the Petitioner has any substantive evidence to substantiate his case that the Respondent inspite of status quo order dated 2nd June, 2008 is undertaking any repair work, may be free to seek appropriate relief against the Respondent, as may be advised, which application can be considered on its own merits. 6. This Petition however, is rejected for the reasons already recorded in the earlier part of the 4 Order. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)