1 WP 3049 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITON NO.3049 OF 2011 Kishor P. Gandhi ...Petitioner Vs. Saraswat Co.op. Bank Ltd. ...Respondent ----- Mr.Ketan R. Parekh i/b. K.R. Parkh and Co. for Petitioner Mr.D.S. Sabnis for Respondent No.1 ----- CORAM: V.M. KANADE J. DATED: 20th April, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and Respondent. 2. The Petitioner is aggrieved by an order passed by the Appellate Bench of the Small Causes Court dated 9.3.2011. The Petitioner is the original Defendant-tenant and the Respondent is the original Plaintiff-landlord. The Respondent filed a suit for eviction on the ground that the tenant had made permanent alterations and construction in the suit premises. An architect’s report was annexed at the time of filing of the suit. An application was made by the Plaintiff in 2010, in which two reliefs were claimed. One was for appointment of Court Commissioner with a direction to direct the Court Commissioner to submit a report and, second relief was 2 WP 3049 of 2011 permission to inspect the premises along with his architect and engineers. The Trial Court allowed the said application. In appeal before the Appellate Court, the counsel for the Plaintiff did not press the relief for appointment of Court Commissioner and permitted the Plaintiff to inspect the suit premises along with his architect and engineers. 3. The learned counsel appearing on behalf of the original tenant submitted that though the prayer for appointment of the Court Commissioner was given up, the alternate relief which is granted by the Lower Appellate Court is to permit the Respondent-Plaintiff to collect evidence under the guise of taking inspection. He submitted that the provisions of Order 26 Rule 9 of CPC would prevail under the provisions of section 28 of the Maharashtra Rent Control Act. It was submitted that this is an attempt to collect evidence before the evidence was recorded by the Trial Court. It was submitted that the Single Judge of this Court in the case of Empeegee Portfolio Services Pvt. Ltd. vs. Sharada Navinchandra Shah [2009(1) Bom. C.R.579] has held that the right to inspect the premises has given to the landlord under section 28 of the Maharashtra Rent Control Act would not mean that he could only take inspection and the said section permitted the landlord to make critical 3 WP 3049 of 2011 examination of the premises. The learned counsel for the Petitioner submitted that, however, the ratio of the judgment passed by this Court would not apply to the facts of the present case since in that case, the power under Order 26 Rule 9 was not considered by the Court. 4. The submissions made by the learned counsel for the Petitioner cannot be accepted. Section 28 of the Maharashtra Rent Control Act reads as under: A plain reading of the said provision clearly indicates that the landlord has a power to take inspection of the premises after giving notice and the tenant cannot raise any objection about the inspection. The said inspection has rightly observed in the case of Empeegee Portfolio Services Pvt. Ltd (supra) would not be construed to mean that the landlord can only take a look at his premises. It is always open for him to make a critical examination of the said premises which may be necessary for various reasons. 5. Hence, in my view, no case is made out for interfering with the order passed by the Lower Appellate Court. Writ Petition, therefore, is dismissed. (V.M. KANADE J.)