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SCA/10984/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10984 of 2010
=========================================================
ROSHANBEN
BANSILAL MISTRY & 2 - Petitioner(s)
Versus
MOHANBHAI
DHARABHAI BHARVAD POA ANILKUMAR JEETMAL VAGHELA & 1 -
Respondent(s)
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Appearance
:
MR
VIRAL M PANDYA for
Petitioner(s) : 1 - 3.
None for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 15/09/2010
ORAL
ORDER
This
petition is directed against the order dated 16.3.2010 passed below
Exhibit 73 by the learned Judge, City Civil Court in Civil Suit No.
3268 of 1996.
The
petitioners herein are the original defendant Nos. 2 to 4 whereas
present respondent No.1 is the plaintiff who has filed said suit for
specific performance of an Agreement to Sell allegedly entered into
between him and the present respondent No. 2.
During
the proceedings of said suit, the present petitioners submitted
application (Exhibit 73) seeking appointment of Court Commissioner.
The said request has been rejected by the learned Trial Court by
aforesaid order dated 16.3.2010. Aggrieved by the said order the
petitioners- original defendant Nos. 2 to 4 have preferred present
petition.
Mr.
Pandya, learned advocate has appeared for the petitioners. I have
heard the learned Counsel for the petitioners and perused the
record.
Mr.
Pandya, learned advocate for the petitioners has submitted that
there are allegation and counter allegation in respect of the suit
property between the petitioners and the original plaintiff i.e.
present respondent No.1, and that therefore, appointment of Court
Commissioner under provision of Order 26 Rule 9 is necessary for the
purpose of inspection. He has also submitted that if the request is
not granted, it would affect interest of the petitioners. He also
submitted that the petitioners are in possession of the suit
property since last 40 years and now the petitioners have started
making claim in respect of suit property on the basis of alleged
Agreement to Sell purportedly entered into between him and the
respondent. It was in this backdrop that the petitioners made
application seeking appointment of Court Commissioner, however the
learned Court has rejected the application for the reasons recorded
in the order particularly paragraph 7 of the order. He submitted
that the order suffers from an error of non application of mind and
the same is contrary to settled legal position. The learned advocate
also relied upon the judgment of the Hon’ble Apex Court in case
between Haryana Waqf Board vs. Shati Sarup (2008 (8) SCC 671).
One
of the facts which has emerged from the record and submission of the
learned Counsel is that the applicant had submitted application for
interim relief. The said application has already been rejected by
the learned Trial Court. In the said application for interim relief
the plaintiff had prayed for interim relief for specific performance
and the interim relief has been rejected against the plaintiff i.e.
present respondent No.1.
Another
relevant and important fact which deserves to be noted is that even
the petitioners have preferred an application seeking interim relief
and the said application is pending for hearing and decision.
It
appears that during the pendency of the said interim relief
application presented by the petitioners, the
petitioners submitted application Exhibit 73 seeking appointment of
Court Commissioner.
From
the tenure of the application and in light of the fact that
petitioner’s application for interim relief is pending, it becomes
apparent that the petitioners are trying to gather evidence with the
aid of Court Commissioner to support and strengthen the application
for interim relief instead of
going through the proper and regular procedure or leading evidence
and cross examination of the witnesses of the other
side, the petitioners want to short-circuit the
procedure and for the purpose of calling specific evidence on
record, appointment for Court Commissioner is requested for.
In
the facts of the case, the judgment of the Hon’ble Apex Court which
involves altogether facts different from the facts of the present
case, do not help the petitioners. In the said case what was sought
for is demarcation of the disputed land and the purpose was not of
collecting evidence whereas in the present case the facts are
altogether different. Furthermore, if during the precess of
cross-examination of the witnesses or after the oral evidence
including cross-examination of the witness of other side, if any
need for Court Commissioner is established and foundation for such
need is duly laid during evidence, then such application may be
justified and any of the parties may make request for Court
Commissioner for local inspection however, at this stage any case
for appointment of Court Commissioner is not made out.
The
learned Trial Court has rightly and justifiably rejected the
application. The interlocutory order does not call for any
intervention in petition under Article 227 of the Constitution of
India.
Hence,
the petition is rejected.
(K.M.THAKER,J.)
Suresh*
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