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LPA/1690/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1690 of 2010
In
SPECIAL
CIVIL APPLICATION No. 6202 of 2010
with
CIVIL
APPLICATION No.8641 of 2010
=================================================
RAMNIKAL
PRAGJIBHAI PUJANI THRO'POA PRABHULAL P PUJANI - Appellant(s)
Versus
HEIRS
OF DECEASED RASIKLAL AMRUTLAL DOSHI,VIKRAMBHAI.R DOSHI -
Respondent(s)
=================================================
Appearance :
MR
RC KAKKAD for Appellant(s) : 1,
None for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR.S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 07/09/2010
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE ANANT S. DAVE)
This
appeal under clause 15 of the Letters Patent is filed by the
appellant-original defendant challenging the order dated
17.05.2010 passed by the learned Single Judge in exercise of powers
under Article 227 of the Constitution of India whereby the prayer of
the original defendant to quash the order dated 11.03.2010 passed
below Exh.81 in Regular Civil Suit No.1003 of 2000 by which court
commissioner was appointed to examine the plaintiff, came to be
rejected.
2. Learned
advocate for the appellant submits that while passing the order
impugned, the Trial Court overlooked the provisions of Order XXVI of
the Code of Civil Procedure and no directions could have been issued
to examine the plaintiff once the power of attorney of the plaintiff
was cross-examined by the advocate of the defendant, meaning thereby
chief-examination as well as cross-examination of the plaintiff was
over through his power of attorney holder. The above contention
though raised, the same was not appreciated by the learned Single
Judge in correct perspective and, therefore, the order deserves to be
quashed and set aside.
3. We
have heard learned advocate for the appellant and perused the record
of the case. We are unable to countenance the contention of learned
advocate for the appellant inasmuch as under the provisions of Order
XXVI of the Code there is no bar to issue or appoint a court
commissioner for examination of the plaintiff. That Order XXVI Rules
1 and 2, read with Order XVI Rule 19 of Code of Civil Procedure and
para 111 of Civil Manual reveal that the civil court is empowered to
issue commissions and such power is not restricted only in the case
of witness but can be exercised to examine any person by a court
commissioner.
4. Such
view taken by the learned trial Judge and confirmed by the learned
Single Judge after considering the provisions of Order XXVI, it was
noticed that the writ petition was filed under Article 227 of the
Constitution of India against an interlocutory order, which was of a
discretionary nature, and at the same time a direction for
appointment of Court Commissioner was issued to examine the
plaintiff, which would not cause any prejudice inasmuch as the
defendant would have all chances to cross-examine, cannot said to be
contrary to law.
5. It
is trite that petition under Article 227 of the Constitution of India
can be entertained only in a case where error apparent on the face of
the record, may be manifest or patent, is noticed in the order passed
by the trial court while exercising the jurisdiction.
6. No
error appears in the the order of the trial court and learned Single
Judge. We are in complete agreement with the reasoning of the
learned Single Judge while refusing to exercise jurisdiction under
Article 227 of the Constitution of India. No case is made out to
interfere with the impugned order.
Accordingly,
both letters Patent Appeal and Civil Application stand dismissed. No
costs.
[S.J.Mukhopadhaya,
C.J.]
[Anant
S. Dave, J.]
*[sn
devu] pps/pvv
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