Gujarat High Court Case Information System
Print
CRA/160/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 160 of 2010
=========================================
CHAUDHARY
DALJEEBHAI MOTIBHAI - Applicant(s)
Versus
DESAI
HEMRAJBHAI VIRSANGBHAI & 5 - Opponent(s)
=========================================
Appearance
:
MR PS
CHAUDHARY for
Applicant(s) : 1,
None for Opponent(s) : 1 -
6.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 14/10/2010
ORAL
ORDER
1. The
petitioner has filed this Revision Application under section 100 of
Civil Procedure Code and challenged the order passed by learned
Principal Civil Judge at Kheralu on 8th September 2010
below Exhibit 25 in Regular Civil Appeal No. 19 of 2010 rejecting
the application moved by the appellant original plaintiff to
appoint commissioner and to make panchnama in respect of property
bearing survey No. 1762/1 of Kheralu being suit property .
2. According
to the petitioner-original plaintiff commissioner was appointed
and had prepared panchnama and it was produced in the Court by Mark
14/1 and he had filed objections in respect of panchnama as
panchanama did not contain the fencing on the suit property and
therefore a request was made to make another panchnama in respect
of suit property.
3. The
original defendant objected to the prayer made in the application.
After hearing the learned advocate for the parties, the trial court
rejected the application. Being aggrieved by the said decision the
petitioner has filed this Revision Application.
4. I
have heard learned advocate Mr Chaudhary for the petitioner. He has
submitted that the original defendant is misusing the panchnama
made in this matter in other proceedings pending between the
parties and therefore a fresh panchnama is requried to be drawn and
the learned trial judge committed error in rejecting application.
5. It
is not in dispute that earlier commissioner was appointed and
had prepared a panchnama and it was produced on the record of the
case. The averments made in the application indicate that the
appellant filed the objections in respect of the panchnama on the
ground that certain facts were not incorporated in the panchnama.
It appears that evidence is still to be recorded in the trial court
and commissioner is still to be examined to prove the panchanama. It
is also settled proposition that commissioner cannot be appointed to
collect evidence. The submission that the panchnama is being used in
another proceeding is not a ground to appoint a commissioner and
to make a fresh panchnama. Therefore, learned trial judge was
justified in refusing to appoint commissioner to make panchnama
again. Learned advocate for the petitioner has not been able to
indicate that the learned trial judge committed error in not
exercising the jurisdiction vested in him.
6. In
the result this Revision Application fails and stands dismissed
with no order as to costs.
(B.N.
Mehta,J.)
mary//
Top