1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7600 OF 2008 Biharilal M. Bakhai Petitioner versus Ms.Meenakshi Kantilal Shah and others Respondents S.S.Ratnakar for petitioner. I.M.Vohra i/by Bipin Joshi for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 21st July 2009 PC :- 1. Heard learned counsel for the petitioner and the learned counsel for the respondents. The respondents are the original defendants. The petitioner-landlord filed a suit for possession against the respondents in the Court of Small Causes. One of the allegations made in the suit is that the respondents-defendants have carried out structural alterations in the suit premises. On an application at Exhibit-28 made by the petitioner, the learned Trial Judge has passed following order : "ORDER Exhibit 20 in R.A.E. and R. Suit No.732/1100 of 2006 is hereby granted. The defendants are directed to allow the plaintiff to inspect the suit premises alongwith his Architect and Advocate on 15.11.2007 between 11.00 a.m. to 3.00 p.m. It is made clear that Architect who would accompany the plaintiff for inspection of suit premises, shall not prepare 2 Report and plaintiff shall not file it on record as a evidence." 2. A revision application was filed against the said order by the petitioner. The said application has been rejected. The petitioner is aggrieved by that part of the order of the Trial Court by which an Architect appointed by the petitioner-plaintiff has been restrained from preparing a report of inspection. The submission is that no purpose will be served by inspecting the suit premises by the Architect if he is not permitted to prepare a report. The learned counsel for the respondents pointed out that an application was made by the petitioner for appointment of Court Commissioner for inspecting the suit premises. The said application has been rejected. Therefore, the petitioner now cannot claim a relief by filing this petition which was not granted in favour of the petitioner in the earlier application. 3. I have carefully considered the submissions. The order permitting the petitioner-plaintiff, his Architect and Photographer to visit the suit premises and to carry out the inspection thereof has not been challenged by the respondents. The petitioner made the application on which the said order has been passed obviously because after inspecting the premises he wants to lead evidence as regards the alleged alterations, if any, carried out by the respondents. It is obvious that the petitioner- plaintiff will be entitled to examine the Architect and the Photographer as witnesses. It is also obvious that the Architect and the Photographer will not be visiting the suit premises as Court Commissioners. If the Trial Court had appointed a Commissioner to visit the suit premises and submit a report on inspection, the report of the Court Commissioner along with the evidence taken by him could have become evidence in view of sub rule 2 Rule 10 of Order XXVI of the Code of Civil Procedure, 1908. When the Architect of the petitioner visits the suit premises, he will have to be permitted to take notes and prepare a report which he can submit to the petitioner-plaintiff. Even if such a report prepared by the Architect is produced by the petitioner before the Trial Court, it will not 3 become evidence under sub rule 2 of Rule 10 of Order XXVI of the said Code and even if the petitioner produces the said report before the Court, the petitioner will have to prove the said report in accordance with law of Evidence. The apprehension expressed by the advocate for the respondents has no merit as the said report will not become admissible in the evidence unless it is produced and proved by the petitioner-plaintiff in accordance with law. 4. Hence, I pass following order :- (a) The impugned order dated 03rd November 2007 is modified. It will be open for the Architect employed by the petitioner to prepare a report of inspection of the suit premises; (b) It will be for the petitioner to produce and prove the said report in accordance with law of evidence inasmuch as the Architect has not been permitted to visit the suit premises as a Court Commissioner; (c) It is obvious that before visiting the suit premises in terms of order dated 3rd November 2007, at least 72 hours notice will be given to the respondents; (d) With these observations the writ petition is disposed of. (A.S.OKA, J.)