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SCA/13930/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13930 of 2010
=========================================================
P
K THAKKAR CONSTRUCTION PVT LTD - Petitioner(s)
Versus
CHIEF
EXECUTIVE OFFICER & 3 - Respondent(s)
=========================================================
Appearance :
MR
NANDLAL THAKKAR for Petitioner(s) : 1,
MR HS MUNSHAW for
Respondent(s) : 1,
None for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 27/01/2011
ORAL
ORDER
Leave
to amend the prayer clause.
1. By
way of this petition, the petitioner has prayed for the following
reliefs :-
“[A]
Your Lordships be pleased to admit and allow this petition.
[B]
Your Lordships further be pleased to issue writ of mandamus and/or
certiorari or any other appropriate writ, order or direction to the
respondent and be further pleased to quash and set aside the order
passed on Exh. 33 and allow this application by further directing the
Court Commissioner to compete the Commissioner’s work with liberty to
the petitioner to open the premises with their own keys.
[C]
Pending, admission, hearing and final disposal of this petition, Your
Lordships further be pleased to stay the further proceeding in Civil
Suit No. 871/2009 before the learned trial Judge, Mirzapur,
Ahmedabad.
[D]
…..”
2. The
facts in brief are that the petitioner herein is a private limited
company registered under the Companies Act and the respondent is a
Trust registered under the Bombay Public Trusts Act. An agreement of
lease was entered into between the petitioner-Company and the
respondent-Trust in respect of the property being a building named
“Niharika” situated at Survey Nos. 158/6 and 158/7 of
moje Vastrapur of Final Plot No. 212 & 213 of T.P. Scheme No. 1,
Vastrapur, Ahmedabad.
2.1.
The petitioner preferred Suit No. 871/2009 before the District Court,
Mirzapur against the respondent for the damages caused to the
property in question. It is the case of the petitioner that in the
said suit, the petitioner preferred application Exhibit-7 before the
trial Court for appointment of a Court Commissioner for drawing
panchnama of the premises in question and further to prepare report
of the articles placed in the property in question. The said
application Exhibit-7 came to be allowed vide order dated 31.12.2009.
Pursuant thereto, the Court Commissioner visited the site of the
property in question and prepared report dated 09.01.2010.
Thereafter, the petitioner preferred application Exhibit-33 before
the Court below praying to direct / pass an appropriate order for
completing the work of the Court Commissioner which was left
incomplete on account of non-cooperation on the part of the
respondent. The trial Court vide order dated 25.03.2010 rejected the
said application. Hence, this petition.
3. Heard
learned counsel for the petitioner and perused the
documents on record. It appears from the record that earlier the
petitioner had filed an application Exhibit-7 along with suit in
question, requesting the Court below to appoint the Court
Commissioner for the purpose of preparing the panchnama
of the premises in question. The said application was allowed by the
trial Court vide order dated 31.12.2009. However, subsequently, the
petitioner filed application Exhibit-33 requesting the Court below to
direct the Court Commissioner to complete the work of preparing the
panchnama which was left incomplete on account of non co-operation on
the part of the respondents-original defendants at the relevant time.
The trial Court rejected the application Exhibit-33 filed by the
petitioner since it was of the opinion that the petitioner had not
come before the Court with clean hands. It may be noted that in the
application Exhibit-7 filed by the petitioner no averments were made
that the premises in question had been sealed and that the lock had
been applied on it. However, no relief was sought in the said
application Exhibit-7 that the Court Commissioner may be directed to
prepare the panchnama
after unlocking the door and after removing the seal. In view of the
same, the Court Commissioner had prepared the Report as per the
relief which was claimed in the application Exhibit-7 filed by the
petitioner.
4. By
filing application Exhibit-33, the petitioner had tried to create
evidence by way of removing the seal and by way of claiming
compensation towards the damages. If the petitioner was really
interested to get the panchnama
prepared by the Court Commissioner in a situation where the premises
were locked and were sealed, then the petitioner would have
definitely made a mention
about the same in the application Exhibit-7 filed by him in earlier
point of time. However, as stated herein-above, no such averments
were made by the petitioner in the said application Exhibit-7. In the
said application Exhibit-7, the petitioner had only prayed for the
appointment of the Court Commissioner, which was duly granted by the
trial Court. However, in the subsequent application Exhibit-33, the
petitioner had again sought appointment of the Court Commissioner on
flimsy ground. It appears that it is nothing but clear attempt on the
part of the petitioner to create evidence in his favour.
5. In
the impugned order, the Court below has recorded that the
respondents-original defendants were also ready if lock as well as
seal applied on the premises are removed. However, before the Court
below, the petitioner was not interested to the said suggestion made
by the learned advocate appearing for the original defendants. This
clearly shows that the application Exhibit-33 was filed with some
oblique and ulterior motive.
6. Considering
the facts of the case, I am of the view that the Court below has
rightly rejected the application Exhibit-33 filed by the petitioner.
I am in complete agreement with the reasonings given and findings
arrived at by the trial Court and hence find no reason to interfere
with the same.
7. Consequently,
the petition is dismissed. Notice is discharged. No order as to
costs.
[K.S.
JHAVERI, J.]
/phalguni/
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