The Bombay High Court has clarified that the appointment of a Court Commissioner for structural inspection of a building cannot proceed without the availability of the sanctioned building plan, rendering such an exercise futile when the plan is unobtainable. This judgment resolves a protracted litigation over inspection procedures in a rent control suit and establishes a critical boundary on the scope of court-appointed commissions.
Background & Facts
The Dispute
The dispute arises from R.A.E. Suit No. 8/10 of 2012 filed by Plaintiffs Nos. 1 to 3 against Defendant Nos. 1 to 279 concerning the suit property - a building known as "Mohatta Cloth Market" located at Queen’s Patton Road, Mumbai. The Plaintiffs, successors-in-title to Shivratan G. Mohatta, seek eviction of the Defendants, who are tenants or licensees occupying the building constructed on land bearing Survey Nos. 12, 13, and 14 (1843.89 sq. yds). The Plaintiffs allege unauthorized additions, alterations, and encroachments on common areas and compulsory open spaces, which form the basis for their claim of mesne profits and eviction.
Key Facts
- The building consists of ground plus mezzanine plus five storeys with 267 units.
- Defendant Nos. 8 to 12 are the successors-in-title to the original lessee, Rahim Karim Mistry, and have inducted Defendant Nos. 13 to 279 as occupants.
- Plaintiffs first applied for inspection under Section 28 of the Maharashtra Rent Control Act, 1999 in 2017.
- The Trial Court allowed the inspection on 23.08.2017, but the Appellate Bench reversed it on 10.10.2019.
- The Bombay High Court upheld the reversal on 24.09.2024 in Writ Petition No. 1406 of 2020.
- The Supreme Court dismissed Special Leave to Appeal (C) No. 2257 of 2025 on 03.02.2025 but granted liberty to either party to apply for appointment of a Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, to be decided on its own merits.
- Plaintiffs filed Application at Exhibit-118 on 08.02.2025 seeking appointment of a Court Commissioner.
- The Small Causes Court appointed Mr. Pradeep N. Kushawar, Architect and Valuer, as Court Commissioner by order dated 15.03.2025.
- The order directed the Commissioner to:
- Visit the building and inspect its actual condition
- Record total number of premises, floor-wise distribution, monthly rents, license fees, additions, alterations, and encroachments
- Carry the sanctioned plan of the building
- File a detailed report with photographs within 20 days of issuance of writ
- Plaintiffs were directed to obtain a certified copy of the sanctioned plan from the Municipal Corporation of Greater Mumbai (MCGM) and file it by 21.03.2025.
- MCGM submitted in writing (Exhibit-286) that the sanctioned plan of the building is not available in its records.
- Plaintiffs filed Applications at Exhibits-292, 359, and 326 seeking enforcement of the 15.03.2025 order.
- The Trial Court directed the Commissioner to proceed without the plan by orders dated 13.10.2025, 28.11.2025, and 04.12.2025.
- Defendant Nos. 8 to 12 filed Review Application at Exhibit-368, which was rejected on 04.04.2026.
- Plaintiffs filed Application at Exhibit-392 seeking show cause notice against the Commissioner for non-compliance.
- On 04.04.2026, the Trial Court directed the Commissioner to complete the inspection work despite the absence of the sanctioned plan.
Procedural History
- 23.08.2017: Trial Court allows inspection under Section 28 of Rent Act
- 10.10.2019: Appellate Bench reverses the order
- 24.09.2024: Bombay HC dismisses Writ Petition No. 1406 of 2020
- 03.02.2025: Supreme Court dismisses SLP (C) No. 2257 of 2025 but grants liberty for Commissioner application
- 08.02.2025: Plaintiffs file Application at Exhibit-118 under Order XXVI Rule 9 CPC
- 15.03.2025: Small Causes Court appoints Court Commissioner with direction to carry sanctioned plan
- 09.09.2025: Trial Court directs MCGM to produce original plan
- 13.10.2025: Trial Court allows Exhibit-292, directs Commissioner to comply with 15.03.2025 order
- 28.11.2025: Exhibit-359 disposed of
- 04.12.2025: Exhibit-326 disposed of as infructuous
- 04.04.2026: Review Application (Exhibit-368) rejected; Exhibit-392 disposed of directing inspection without plan
- 07.05.2026: Bombay HC delivers judgment on Writ Petition No. 5498 of 2026
The Parties' Positions
Petitioners (Defendants 8 to 12): Argued that the Court Commissioner’s mandate under the 15.03.2025 order was contingent on the availability of the sanctioned plan. Without it, the inspection for additions, alterations, and encroachments is impossible and legally unsustainable. They contended that the Trial Court’s direction to proceed without the plan was arbitrary and contrary to the terms of the original order.
Respondents (Plaintiffs 1 to 3): Contended that the inspection was necessary to establish mesne profits and unauthorized construction. They argued that the Supreme Court’s directive for expeditious disposal of the suit compelled the Trial Court to find alternative means to complete the inspection, even without the plan.
Relief Sought
The Petitioners sought quashing of the order dated 04.04.2026 directing the Court Commissioner to proceed without the sanctioned plan. They also sought a declaration that the inspection, as directed, was futile and a direction to the Trial Court to proceed with the suit without further inspection.
The Legal Issue
Can a Court Commissioner appointed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 lawfully conduct an inspection requiring comparison with a sanctioned building plan when that plan is demonstrably unavailable, and the order of appointment explicitly conditioned the inspection on its availability?
Arguments Presented
For the Appellant/Petitioner
The Petitioners relied on the explicit terms of the order dated 15.03.2025, which made the availability of the sanctioned plan a sine qua non for the Commissioner’s duties. They argued that the Commissioner, being an architect and valuer, lacks the authority to determine structural alterations or encroachments without a baseline reference. The direction to proceed without the plan rendered the commission meaningless and violated the principle of judicial orders being executed as framed. They cited State of Maharashtra v. Rameshwar to emphasize that court-appointed commissioners must act strictly within the scope of their appointment.
For the Respondent/State
The Respondents argued that the Supreme Court’s directive for expeditious disposal of the suit imposed a duty on the Trial Court to ensure progress. They contended that details such as number of units, rent, and occupant names could be recorded without the plan, and that the Commissioner could rely on physical observation and witness statements. They further submitted that the Defendants’ willingness to provide these details rendered the inspection redundant, but the Court’s duty to record evidence remained.
The Court's Analysis
The Court observed that the order dated 15.03.2025 was not a general directive for inspection but a highly specific one, requiring the Commissioner to compare the building’s current state with the sanctioned plan to identify unauthorized changes. The directions to carry the plan, obtain it from MCGM, and issue the writ only after its filing were not procedural formalities but substantive conditions.
"The availability of sanctioned plan was the 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."
The Court noted that the Commissioner’s role was not that of a general surveyor but of an expert tasked with verifying compliance with approved architectural plans. Without the plan, the Commissioner could not determine whether alterations were unauthorized. The Court emphasized that the Trial Court failed to consider this fundamental limitation and made no inquiry into how the Commissioner could fulfill the core mandate.
The Court further held that the Trial Court’s reliance on the Supreme Court’s directive for expeditious disposal was misplaced. While urgency is important, it cannot override the impossibility of performing a legally mandated task. The Court stated:
"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 Court also recognized that the Defendants had offered to provide all non-plan-dependent details - number of units, rent, occupant names, and areas - thereby fulfilling the Plaintiffs’ primary evidentiary needs for mesne profits. The Court concluded that continuing the inspection under these circumstances would be an exercise in futility, causing further delay and potential unrest in a densely populated area.
The Verdict
The Petitioners succeeded. The Bombay High Court set aside the order dated 04.04.2026 directing the Court Commissioner to conduct inspection without the sanctioned plan. Defendant Nos. 8 to 12 are directed to file an affidavit before the Trial Court within two weeks disclosing the number of premises per floor, their respective areas, names of tenants/licensees, and monthly rent/compensation/license fees. The writ petition is partly allowed and disposed of.
What This Means For Similar Cases
Inspection Mandates Must Align with Available Evidence
- Practitioners must ensure that applications for Court Commissioners under Order XXVI Rule 9 CPC specify feasible tasks based on available documentation.
- Courts must not issue commissions requiring expert comparison with documents known to be unavailable.
- If a plan, survey, or blueprint is essential to the inspection’s purpose, its absence must be formally acknowledged before proceeding.
Willingness to Disclose Can Render Inspection Redundant
- Where parties voluntarily offer to disclose factual details (e.g., rent, occupancy, unit count), courts should consider whether a costly, time-consuming inspection remains necessary.
- The burden of proving unauthorized construction or mesne profits must be balanced against the practicality of evidence collection.
- Courts may now treat voluntary disclosure as a substitute for inspection where the core factual dispute is resolved.
Judicial Efficiency Cannot Override Legal Impossibility
- The principle of expeditious disposal cannot override the impossibility of performing a legally defined task.
- Courts must not be pressured into directing futile proceedings merely to meet timelines.
- Orders must be executed as framed; deviations without legal basis are ultra vires.
