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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 5498 OF 2026

Rajendra Kumar Mohatta and Ors. ...Petitioners

V/s.

Nargis Majid Oomerbhoy and Ors. ...Respondents

________________

Mr. P. K. Dhakephalkar, Senior Advocate (Through VC) i/b Mr. Jaydeep

Deo and Mr. Onkar Gawade for the Petitioners.

Mr. Pradeep Thorat with Mr. Ganesh Ambekar i/b Jariwala Associates, for

Respondent Nos. 1 to 3

________________

CORAM: SANDEEP V. MARNE, J.

RESERVED ON : 23 APRIL 2026.

PRONOUNCED ON : 7 May 2026

Judgment.:

1) The Petition is filed by Defendant Nos. 8 to 12 challenging

orders passed by the Court of Small Causes at Mumbai on Applications at

Exhibits-368, 292, 359, 326 and 392 filed in R.A.E Suit No. 8/10 of 2012.

All the impugned orders relate to the manner of implementation of order

dated 15 March 2025 by which Court Commissioner was appointed to

visit the suit building for inspection and for performing various other

acts alongwith sanctioned plan of the building. Since sanctioned plan of

the building is not made available to the Court Commissioner, series of

applications are filed at Exhibits-368, 292, 359, 326 and 392, and

ultimately the Trial Court has directed Court Commissioner to carry out

the Commission Work in absence of sanctioned plan of the building.

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2) The details of the impugned orders as under:

Exh-292The Application was filed by Plaintiff No. 2 for issuance of

writ to the Court commissioner as per order dated 15 March

2025. The Application is allowed by order dated 13 October

2025 directing Court Commissioner to comply with the

order dated 15 March 2025.

Exh-326Application filed by Plaintiff for seeking presence of Court

Commissioner before the Court. Disposed of vide order

dated 4 December 2025 as infructuous.

Exh-359Application filed for the purpose of issuance of writ to the

Court Commissioner. Disposed of by order dated 28

November 2025

Exh-368Application filed by Defendant Nos. 8 to 12 seeking review

of orders dated 13 October 2025, 28 November 2025 and 4

December 2025 passed below Exhibits 292, 359 and 326.

Rejected vide order dated 04 April 2026.

Exh-392Application filed by Plaintiffs for issuing show cause notice

to the Court Commissioner for not implementing the order

dated 15 March 2025. Disposed of by order dated 4 April

2026 directing the Court Commissioner to complete

commission work in absence of sanctioned plan of the

building.

3) Thus, the main grievance of the Petitioners/Defendant Nos.

8 to 12 is that though order dated 15 March 2025 directed appointment

of the Court Commissioner for the purpose of carrying out inspection

with reference to sanctioned plan of the building, once it has transpired

that the sanctioned plan of the building is not available, the very

purpose of appointment of the Court Commissioner got frustrated and

the Court could not have directed him to complete the Commission Work

in absence of the Building Plan.

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4) The case has a chequered history, and it is not necessary to

narrate the same considering the narrow issue involved in the Petition.

Suffice it to observe that open Plot of land bearing Nos. 12, 13 and 14

admeasuring 1843.89 square yards situated at Queen's Patton Road,

Mumbai is the 'suit property'. It is the case of the Plaintiffs that

Defendant Nos. 1 to 7 are the lessees/tenants in respect of the suit

property, being the heirs of late Rahim Karim Mistry. By Agreement

dated 27 July 1950, late Rahim Karim Mistry assigned his right, title and

interest in the suit property to late Shivratan G. Mohatta, who is the

predecessor in title of the Defendant Nos. 8 to 12. A building of ground

plus mezzanine plus 5 storeys is constructed on the suit property

consisting of shops and other premises known as "Mohatta Cloth

Market". Defendant Nos. 8 to 12 have apparently inducted several

persons in the units of the building being Defendant Nos. 13 to 279.

Plaintiffs/Respondent Nos. 1 to 3 has filed R.A.E. Suit No. 8/10 of 2012

before the Small Causes Court, Mumbai seeking eviction of the

Defendants.

5) Plaintiffs had filed application for inspection of the suit

premises under provisions of Section 28 of the Maharashtra Rent Control

Act, 1999 (Rent Act), which was partly allowed by the Trial Court by order

dated 23 August 2017, which was reversed in Revision by Appellate Bench

by order dated 10 October 2019. By order dated 24 September 2024, this

Court dismissed Writ Petition No. 1406 of 2020 challenging order dated

10 October 2019 passed by the Appellate Bench. This is how inspection

of the suit building was denied to the Plaintiffs. Plaintiffs filed Special

Leave to Appeal (C) No. 2257 of 2025 before the Hon’ble Supreme Court,

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which did not interfere with this Court’s order dated 24 September 2024.

However, it granted liberty to either of the parties to move an application

for appointment of local commissioner to be decided on its own merits.

6) Accordingly, Plaintiffs filed Application at Exh-118 under

Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (Code) seeking

appointment of Court Commissioner for local investigation/inspection of

the suit premises / suit building. By order dated 15 March 2025, the Small

Causes Court allowed the Application and appointed an architect and

valuer as Court Commissioner with directions to visit the suit building to

take inspection and for performance of other enumerated acts by

carrying the sanctioned plan of the building with him. Plaintiffs were

directed to obtain certified copy of the sanctioned plan of the suit

building from Municipal Corporation and file the same in the Court after

procurement of sanctioned plan. Writ was thereafter directed to be

issued to the Court Commissioner for conducting inspection. The order

dated 15 March 2025 passed on Application at Exhibit 118 was confirmed

in Revision by the Appellate Bench of the Small Causes Court vide order

9 June 2025. This Court dismissed Writ Petition No. 9546 of 2025 vide

order dated 17 December 2025. This is how order dated 15 March 2025

passed below Exhibit 118 appointing Court Commissioner has attained

finality.

7) Since Plaintiff was unable to procure copy of sanctioned

plan from MCGM, Plaintiffs filed application at Exhibit 229 seeking

direction for production of original sanctioned plan. The Application was

allowed issuing direction to the Municipal Corporation to produce the

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original sanctioned plan by order dated 9 September 2025. MCGM,

however, communicated that the sanctioned plans of the building are not

available. Plaintiffs therefore filed Application at Exhibit-292 for

issuance of Writ of Summons to the Court Commissioner, who was not

conducting inspection for implementation of order dated 15 March 2025.

The Application at Exhibit-292 is allowed by Order dated 13 October

2025 directing the Court Commissioner to comply with the order dated

15 March 2025. The Applications filed by Plaintiffs at Exhibits-359 and

326 for the purpose of issuance of Writs to the Court Commissioner were

disposed of by order dated 28 November 2025 and 4 December 2025 after

recording presence of the Court Commissioner.

8) Petitioners/Defendant Nos. 8 to 12 filed Application at

Exhibit-368 seeking Review of orders dated 13 October 2025, 28

November 2025 and 4 December 2025 passed on Applications at Exhibits

292, 359 and 326 respectively, which was rejected by order dated 4 April

2026.

9) In the above background, since Municipal Corporation was

not making available the sanctioned plans of the building, the Plaintiffs

filed Application at Exhibit-392 for issuance of Show Cause Notice to

Court Commissioner for non-compliance with order dated 15 March

2025. By order dated 4 April 2026, the Trial Court has disposed of the

Application with direction to the Court Commissioner to carry out

commission work without the sanctioned plans.

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10) Petitioners/Defendant Nos. 8 to 12 were aggrieved by

various orders passed by the Trial Court as indicated above and have filed

the present Petition.

11) I have heard Mr. Dhakephalkar, the learned Senior Advocate

appearing for Petitioners and Mr. Thorat, the learned counsel appearing

for Respondent Nos. 1 to 3/Plaintiffs. I have considered the submissions

canvassed by them. I have gone through the findings recorded by the

Trial and Appellate Courts. I have also perused the records of the case

filed alongwith the Petition.

12) The main contention of the Petitioners/Defendant Nos. 8 to

12 is that the Court Commissioner cannot conduct inspection in the light

of non-availability of the sanctioned plans with the MCGM. It is

contended that the Court Commissioner was supposed to carry out

inspection of the premises in the suit building with reference to the

sanctioned plans of the building and since the plans are not available,

conduct of inspection by Court Commissioner is an exercise in futility.

13) Defendant Nos. 8 to 12 have been opposing inspection of the

suit building. This is the third round of litigation which has reached this

Court on the aspect of inspection of suit building/suit premises. Initially,

Plaintiffs’ Application for inspection of suit premises under Section 28 of

the Rent Act by the landlords was allowed by the Trial Court by order

dated 23 August 2017. The Appellate Bench set aside the said order and

this Court confirmed the order of the Appellate Bench by order dated 24

September 2024 passed in Writ Petition No. 1406 of 2020. The Hon'ble

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Supreme Court has confirmed the order passed by this Court by passing

order dated 3 February 2025 in Special Leave to Appeal (C) No. 2257 of

2025 but has expedited the trial of the suit. However, in para 1(f) of the

order, the Hon'ble Supreme Court has made following observations:

(f)It shall be open for either of the parties to move an application

for appointment of a Local Commissioner, which shall be considered

and decided on its own merits uninfluenced by the outcome of the

application filed by the petitioner herein, for his personal inspection,

subject matter of instant petition.

14) In view of the liberty granted by the Hon'ble Supreme Court

by order dated 3 February 2025, the Plaintiffs filed Application under

Order XXVI Rule 9 of the Code for appointment of Court Commissioner.

While allowing the Application at Exhibit-118, appointing the Court

Commissioner, the Small Causes Court issued following directions:-

1. The application is partly allowed in following terms:

2. Mr. Pradeep N. Kushawar, Architect and Valuer is appointed as

court commissioner.

3. The court commissioner is directed to visit the suit building, to

take inspection of the suit building, to take note of actual and factual

position of the suit building, total number of premises/units floor

wise, their monthly rents/compensation/licence fees, additions and

alterations and encroachments in the common areas and compulsory

open space of the suit building if any, as per sanctioned plan and to

take photographs, if required.

4. The Commissioner shall carry the sanction plan of the building

with him and file his detailed report with photographs, if required

within 20 days from the date of issuance of commissioner's writ.

5. Plaintiffs shall deposit Rs.30,000/- (Rs. Thirty Thousand only)

towards commission fees within 03 working days from today i.e. on or

before 19/03/2025.

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6. Plaintiffs shall obtain certified copy of the sanctioned plan of the

suit building from BMC Office and file the same before this court on

or before 21/03/2025 for commission work and same shall be given to

commissioner alongwith writ.

7. After filing true copy of sanction plan and payment of fees, writ be

issued to court commissioner (architect) for conducting inspection.

8. The commissioner shall give five days advance notice of the

proposed date of commission to plaintiffs and defendant Nos. 8 to 12

and 61.

9. The commissioner shall file his final report within 20 days from the

date of issuance of writ.

10. The commissioner is entiled for commission fees on his filing the

commission report.

(emphasis and underlining added)

15) The order of the Small Causes Court dated 15 March 2025

has been confirmed by the Appellate Bench of the Small Causes Court

and by this Court.

16) Thus, as per order dated 15 March 2025, the Court

Commissioner was directed to perform acts of inspection of building,

take notes of the actual and factual position thereof, total number of

premises/units floor wise, their monthly rents/compensation/license

fees, additions and alterations as well as encroachment in the common

areas/compulsory open spaces. These acts were required to be performed

by comparing the structure with the sanctioned plan. A specific direction

was issued to the Court Commissioner to carry with him sanctioned plan

of the building while conducting the inspection. For that purpose,

Plaintiffs were directed to obtain certified copy of the sanctioned plan of

the suit building from MCGM. The registry was directed to issue Writ to

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the Court Commissioner only after filing of true copy of sanctioned plan

by the Plaintiffs. Thus, availability of sanctioned plan was the sine qua

non for conduct of inspection by Court Commissioner as per order dated

15 March 2025.

17) Availability of sanctioned plan was necessary because the

main purpose for which appointment of Court Commissioner was sought

was to establish the ground of unauthorized additions and alterations in

the suit property/suit building. However, it has finally transpired that the

sanctioned plan is not available in the office of MCGM. Since copy of

sanctioned plan was not filed with the Trial Court, initially writ was not

issued to the Court Commissioner. The Trial Court ensured presence of

Court Commissioner before itself and directed him to comply with order

dated 15 March 2025 by passing orders on Applications at Exh-292, 359

and 326. Petitioners got aggrieved by the Trial Court summoning the

Court Commissioner and directing him to comply with order dated 15

March 2025 as they believed that absence of sanctioned plan with MCGM

rendered the order dated 15 March 2025 futile. Accordingly, they sought

review of the orders dated 13 October 2025, 28 November 2025 and 4

December 2025. However, the Review Application was rejected by the

Trial Court by order dated 4 April 2026. On the same day, the Trial Court

has decided Plaintiffs’ Application at Exhibit 392, which was filed for

issuance of Show Cause Notice to the Court Commissioner, who was not

carrying out inspection in pursuance of order dated 15 March 2025. By

order dated 4 April 2026, the Trial Court has issued following directions:

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1. The application filed for issuance of show cause notice is disposed off with

the following directions to court commissioner.

2. Court commissioner is directed to carry out commission work without

sanctioned plan as it is not available in office of MCGM as per the written

submission of concerned officer of MCGM at Exhibit 286.

3. Learned advocate for defendant to furnish their address details as requested

by court commissioner immediately.

4. Plaintiff is directed to bear the expenses of service of professional

photographer subject to placing on record receipt of expenses of photographer

by the court commissioner.

5. Court commissioner can place on record documents regarding additional

fees required for commission work as stated by him in the application.

6. Court commissioner is directed as a last chance to carry out court

commission work forthwith and to submit report as per order passed below

Exh. 118.

7. If the court commissioner fails to carry out commission work, plaintiff is at

liberty to take action against him in accordance with law.

(emphasis added)

18) Thus, the Court Commissioner is now directed to conduct

the Commission in absence of sanctioned plan. As observed above,

availability of sanction plan of the building is sine qua non for

implementation of order dated 15 March 2025, as the said order had

made it explicitly clear that the inspection was to be conducted only

after availability of sanctioned plan of the building. Though some of the

particulars such as total number of premises, amount of monthly rent,

etc can be gathered without availability of sanctioned plan of the

building, details relating to additions and alterations in the units and

encroachment in common area / compulsory open space of the building

cannot be ascertained without availability of the sanctioned plan. This is

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the reason why the registry was directed to issue writ to the Court

Commissioner only after filing of true copy of sanctioned plan by the

Plaintiffs. Direction Nos. 4, 6 and 7 of order dated 15 March 2025 make it

explicitly clear that conduct of inspection by the Court Commissioner in

absence of copy of sanctioned plan of the building would be an exercise

in futility. This position is not appreciated by the Trial Court while

passing order dated 4 April 2026 on Exhibit-392 because while

appointing the Court Commissioner by order dated 15 March 2025, the

Trial Court has apparently found it mandatory to ensure that the Court

Commissioner must carry out work in the manner envisaged in that

order.

19) Another factor taken into consideration by the Trial Court

while passing order dated 4 April 2026 is direction issued by the Hon'ble

Supreme Court for expeditious decision of the suit. Because there is

direction for expeditious decision of the suit, the Trial Court has

apparently felt pressurized to complete the work of Commission, without

realizing that the Commissioner cannot complete the work

contemplated in the Order dated 15 March 2025 without a sanctioned

building plan. The Trial Court has not conducted any inquiry nor has

recorded any finding as to how the Court Commissioner can complete

the task envisaged in the order dated 15 March 2025 in absence of

sanctioned plan of the building. The findings recorded by the Trial Court

in paragraph Nos. 8 and 9 of the order dated 4 April 2026 are as under:

8.By this application, Plaintiff is seeking relief to issue show cause

notice to court commissioner for failing and neglect to carry out

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commission work as per order passed below Exhibits 118 & 292. On

perusal of record, it appears that court commissioner by filing

application at Exhibit 372 and another application on 18.10.2025

requested court to furnish the copy of sanction plan, address of

advocate for defendants, services from professional photographer

etc. It is admitted fact that officer of the MCGM filed written

application at Exh. 286 and submitted that sanctioned plan is not

available in the office. Therefore, court has passed order below

Exhibit 292 and directed commissioner to carry out commission

work without sanction plan as it is not available in the office of

MCGM as per the written submission made by concerned officer of

MCGM at Exhibit 286. Till today neither Plaintiffs nor defendants

have produced sanctioned plan on record. Concerned officer of

MCGM submitted that sanction plan is not available in their office.

In such circumstance, as the matter is made time bound by Hon'ble

Apex Court and already extension of one year is sought by this court,

it is the duty of both parties and Learned advocates for both sides as

well as court commissioner to assist the court for concluding trial of

the matter.

9.Instead of co-operating the court for concluding the trial,

Learned advocate for defendants and commissioner is submitting

that without sanctioned plan court commission work cannot be done

or carried out. However, when the officers of MCGM has submitted

that sanctioned plan is not available in their office, court has to

proceed ahead and to implement the order of commission work. So

far as the address of advocate of the defendant and utilization of

service of professional photographer is concerned Learned advocate

for defendant can provide the details thereof and plaintiff is directed

to bear the cost of professional photographer. So far as the fee of

court commissioner is concerned, he can place necessary document

and claim his additional fees and for this reason court commissioner

cannot any more delay the commission work. With this, I am of the

view that instead of issuing show cause notice to court

commissioner, it would be proper to give certain directions to court

commissioner.

20) Thus, there is no discussion as to why Court Commissioner

must conduct inspection even in absence of sanctioned plan of the

building.

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21) As observed above, the Court Commissioner is an architect

and valuer. He would not be in a position to record any finding as to

whether any additions and alterations are carried out by Defendant Nos.

13 to 279 in respect of units in their occupation. The Court

Commissioner would also not be in a position to find out whether there

is any encroachment in the common areas and open spaces of the

building in absence of availability of sanctioned building plan. These two

vital details cannot be noticed or reported by the Court Commissioner.

Thus, the main purpose for which appointment of Court Commissioner

was sought is rendered futile on account of non-availability of

sanctioned building plan.

22) So far as other details relating to number of premises/units

on each floor, names of tenants, rent/compensation/license fees paid by

them and area of each premises are concerned, Mr. Dhakephalkar has

fairly submitted that Defendant Nos. 8 to 12 are willing to offer those

details to the Plaintiffs. In that view of the matter, it is not necessary to

send the Court Commissioner to record details relating to total number

of premises/units floor wise, monthly rent/compensation/license fees,

names of tenants/licensees and areas of each premises/units.

23) Conduct of Commission Work, submission of report and its

consideration would also involve substantial time. Parties to the suit are

exceedingly litigious. They have litigated on the issue of inspection for

the last nine long years. The initial application for inspection under

Section 28 of the Rent Act was filed by Plaintiff in the year 2017, which

was allowed on 23 August 2017. The Revision against that order was

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allowed on 10 October 2019, and this Court confirmed the order of the

Appellate Court on 24 September 2024. The Hon'ble Supreme Court

confirmed the order of this Court by order dated 3 February 2025. Thus,

time during the years 2017 to 2025 was spent while deciding request for

inspection of suit premises by the landlords under Section 28 of the Rent

Act. Thereafter, time from 15 March 2025 to 17 December 2025 was spent

on the issue of appointment of Court Commissioner. After series of

litigation on the issue of inspection, finally it has transpired that

sanctioned plan itself is not available with MCGM. The Suit has already

been expedited by the Hon'ble Apex Court by order dated 3 February

2025. In that view of the matter, it would not be in the interest of parties

to spend time on conduct of inspection of the suit building which

comprises of as many as 267 units especially when the building plan

itself is not available.

24) In fact, non-conduct of inspection of the suit premises and

suit building would enure to the benefit of Plaintiffs, who are

complaining of Defendants delaying the suit. Parties are at acrimonious

relations with each other, and it is seen from records that Plaintiffs had

sought police protection for conduct of inspection by the Court

Commissioner. This shows that conduct of inspection by Court

Commissioner does not appear to be an easy task. Plaintiffs themselves

had expressed apprehension of creation of law and order situation while

conducting inspection by the Court Commissioner. The suit building is

situated in one of the busiest and crowded areas of Mumbai city, close to

Crawford Market. Thus, conduct of inspection by Court Commissioner,

which is now rendered futile on account of non-availability of

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sanctioned building plan, might be an arduous task for the Commission

which is likely to result in filing of several applications and passing of

numerous interlocutory orders, further delaying the progress of the suit.

This is yet another reason why this Court is of the view that the conduct

of inspection through Court Commissioner is not necessary, both in the

light of non-availability of sanctioned building plan and willingness

shown on the part of Defendant Nos. 8 to 12 to share various details.

25) Mr. Thorat has contended that inspection was also sought

for the purpose of raising claim for mesne profits for which details of

number of premises, their respective areas, names of occupants etc. are

necessary. However, this is taken care of on account of statement made

on behalf of the Defendant Nos. 8 to 12 as they are willing to make

available those details to the Plaintiffs. Thus, the main purpose behind

directing inspection is already fulfilled on account of readiness shown by

Defendant Nos. 8 to 12 to share the necessary details with Plaintiffs.

Therefore, instead of spending any further time on conduct of

inspection, it is better that the trial of the suit progresses.

26) This Court is conscious of the fact that order dated 15 March

2025 appointing Court Commissioner has attained finality, and by

interfering with the order dated 4 April 2026, the order dated 15 March

2025 would be rendered meaningless. However, this is necessary on

account of recording of subsequent finding where the building plan itself

is not available. If the Trial Court was made aware of the fact that the

sanctioned building plan itself is not available, it is doubtful as to

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whether it would have passed the order dated 15 March 2025 directing

inspection for additions, alterations, encroachment etc.

27) At this stage, Mr. Thorat complains that Defendant Nos. 8 to

12 are wasting judicial time by conducting the unending cross-

examination of the Plaintiffs. He has complained that witness(s) of

Plaintiffs are being cross-examined for over 84 dates by the Defendants

for delaying the decision of the suit. If this is the case, I am sure that the

Trial Court would take necessary measures for ensuring that cross-

examination is restricted only to the relevant issues to the suit and the

Defendants in the suit do not protract the trial unnecessarily.

28) In the light of the above discussion, I proceed to pass the

following Order:

(i)Order dated 4 April 2026 passed by Small Causes Court on

Application at Exhibit-392 is set aside.

(ii)Defendant Nos. 8 to 12 are directed to share with Plaintiffs

the details relating to number of premises/units in the suit

building floor wise, their respective areas, names of tenants /

occupants / licensees and monthly rent / compensation / license

fees within a period of two weeks by filing affidavit before the Trial

Court to that effect.

26)With the above directions the Writ Petition is partly allowed and

disposed of.

[SANDEEP V. MARNE, J.]

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