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Bombay High CourtWP/7829/2023rejected

Mr. Prakash Kashinath Wadekar And ORS v. Mr. Harshal Ramkrushna Patil And ORS

2023-08-22Hon'Ble Smt. Justice Anuja Prabhudessai2 pages

2023:BHC-AS:23514

41. WP 7829-2023.doc Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7829 OF 2023 Prakash Kashinath Wadekar & ors.

.Petitioners Vs.

Harshal Ramkrushna Patil & ors.

.Respondents Mr. Sameer Singh, Advocate, for the Petitioners Mr. Drupad S. Patil, Advocate, for the Respondents

CORAM

:

ANUJA PRABHUDESSAI, J.

DATE :

22.08.2023 P. C.

.

The Petition challenges the order dated 05.01.2023, whereby the learned Judge dismissed his Application for appointment of the Court Commissioner under Order XVI, Rule 16 of the Code of Civil Procedure, 1908.

2.

Heard learned counsel for the Petitioners and learned counsel for the Respondents.

3.

I have perused the record and considered the submissions advanced by learned counsel for the respective parties.

41. WP 7829-2023.doc 4.

The Respondent herein is the Landlord. He has fled a suit against the Petitioner/Tenant for eviction from the suit premises on the ground of non-user and bonafde requirements. In the affdavit in evidence, the Respondents stated that the Petitioners had committed further encroachment in the property. On the basis of this statement made in the affdavit in evidence, the Petitioners/Tenants fled an Application for appointment of Court Commissioner. The Application for appointment of Court Commissioner has been fled to prove that the Petitioners are in possession of the suit premises. Learned Judge has considered several decisions of the Apex Court as well as this Court and has held that the Court Commissioner cannot be appointed to collect evidence.

Even otherwise, onus would be on the Respondent/Landlord to prove that the Petitioner herein has not committed further encroachment. As rightly held by the learned trial Judge that the Court Commissioner cannot be appointed either to prove possession of the Petitioner or to prove that he has not committed any further encroachment. There is no merit in the Petition. Hence, the Petition stands dismissed. (ANUJA PRABHUDESSAI, J.)