* 1 * W.P.3292/2003 W.P-3293/2003 28.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3292 OF 2003 Gomatidevi B. Gupta .......Petitioner V/S. Damodar Ambikaprasad Mishra & Ors. .........Respondents W I T H WRIT PETITION NO. 3293 OF 2003 Brijbjhan J. Gupta .......Petitioner V/S. Damodar Ambikaprasad Mishra & Ors. .........Respondents * * * * * * Mr. J.S. Kini, Advocate for the petitioners. None for the respondents. Coram : Smt. R.P. SondurBaldota, J. 28 September, 2010. P.C./JUDGMENT : 1. On 23rd September 2010, when the petition was called out for hearing, respondents and Advocate were absent. The submissions on behalf of the petitioners were heard and the matter was * 2 * W.P.3292/2003 W.P-3293/2003 28.9.2010 adjourned initially to 24th September 2010 and then to 27th September 2010 by way of an opportunity to the respondents to appear in the matter and advance arguments in reply. This opportunity however, has not been taken by the respondents. 2. This is a common order on the two petitions filed under Article 227 of Constitution of India. The short question that arises for consideration in this petition is whether the Court Commissioner can be appointed under Order 26 Rule 9 Civil Procedure Code to visit the suit premises and to make a report about its condition after evidence in the suit is partly recorded. 3. The respondents who are the landlords have filed R.A.E. Suit No.1689 of 1998 and R.A.E. Suit No.1688 of 1998 against the petitioners in both the petitions in respect of two separate premises on the ground of unauthorised additions and alterations of permanent nature having allegedly been carried out in the demised premises. These allegations have been denied by the petitioners in their written statements. 4. In the midst of the examination-in-chief of the respondents, they made applications for appointment of Court Commissioner to * 3 * W.P.3292/2003 W.P-3293/2003 28.9.2010 visit and inspect the suit premises and to make a report to the court regarding the condition of the two demised premises. The application was opposed on the ground that it was nothing but an attempt on the part of the respondents to collect evidence through the machinery of the court. The learned trial judge by his order dated 5th May, 2002 rejected the application with following observations. . Under Order 26 Rule 9 of the Code of Civil Procedure, the “ Court Commissioner can be appointed to elucidate the dispute between the parties. Here so far, both the parties have not to their entire evidence, at this state, It is very difficult to as to certain as to certain as so whether appointment of court commissioner is necessary to be elucidate the dispute between the parties, and therefore, I am of the opinion that though the plaintiff has relied upon the observations of our High Court reported in 1986(1) All India Rent Control Journal page 671 and 1986(1) All India Rent Control Journal page 532 and submitted that the Court Commissioner can be appointed, I am of the opinion that in view of my above discussion, the Court Commissioner at this stage cannot be appointed as this will be amounting to appointment of Court Commissioner to collect the evidence.” * 4 * W.P.3292/2003 W.P-3293/2003 28.9.2010 4. The respondents challenged the order by preferring Revision Application No. 115 of 2002 and Revision Application No.116 of 2002 before the Division Bench of the Small Causes Court. The Bench by its common order dated 1st April 2003 allowed the Revision Applications and also the applications for appointment of Court Commissioner. It was contended before the Division Bench that the respondents will not able to prove the ground of alterations and additions as the oral evidence led by the parties thereon would be word against word and the building plans sanctioned by the Corporation for construction of the building in which the demised premises are situate, are not available with the landlords. The Bench allowed revision applications giving following reasons: In this particular case, the averments are very specifically “ made by the plaintiffs which are totally denied by the defendant. Not only that but the advocate for the petitioner herein has stated that this is a chawl type construction and the sanctioned plans are not with the landlord. Not only that but he has gone further and stated that no plans are prepared. If this is the position then plaintiff will not be able to prove the ground of alterations and additions, though the specific pleadings are there or details are there. Now, in the oral evidence, there will be word against the word and court will not be able to give finding on the issue involved, therefore, the prayer of the plaintiff is * 5 * W.P.3292/2003 W.P-3293/2003 28.9.2010 appropriate. To bring particular facts on record, it is not amount to collection of evidence, because facts are already pleaded. Particulars are already pleaded and there is merely denial by the defendant.” 5. The observations of the Bench of Small Causes Court are clearly premature. The parties are yet to complete their evidence in the matter. The stage of evaluation of the oral evidence led by the parties, would come only after the entire evidence is recorded. During the course of recording of evidence, both sides will have an opportunity to cross-examine each other so as to bring the truth on record. Even if the respondents do not have in their possession, the building plans sanctioned by the Corporation, they can always examine the necessary witnesses. The order directing appointment of Commissioner at this stage of the proceedings is undoubtedly erroneous. It is an erroneous exercise of jurisdiction. Hence, the order cannot be sustained. In the circumstances, Rule is made absolute in terms of prayer clause (a). [Smt. R.P. SondurBaldota, J]