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2014 DIGILAW 889 (GUJ)

KAMLESHBHAI AMBALAL v. RAJENDRA NATWARLAL PATEL

2014-08-08

ABHILASHA KUMARI

body2014
JUDGMENT 1. Rule. Ms. Megha Jani, learned advocate for the respondent (Caveator), waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. 2. The challenge in this petition under Article 227 of the Constitution of India, is to the order dated 22.01.2013, passed by the learned 10th Additional Senior Civil Judge, Ahmedabad (Rural) (“the Trial Court” for short), below the application at Exh.85, preferred by the respondent herein for appointment of a Court Commissioner, in Civil Misc. Application No.65 of 2012, whereby, the said application has been allowed. 3. Briefly stated, the relevant facts of the case are that the petitioner instituted Special Civil Suit No.79 of 2009, seeking various reliefs in respect of land bearing Revenue Survey No.137, admeasuring 15,783 sq. mtrs., situated at Makarba, Taluka: Ahmedabad-City-West, District Ahmedabad (“the suit land”). The present respondent is defendant No.7 in the said suit. There is a history of litigation between the parties and five different suits have been instituted by either side against the other, in respect of the same land. The present proceedings emanate from Special Civil Suit No.79 of 2009. In the said suit, the petitioners preferred an application at Exh.5 for the grant of a temporary injunction, which was allowed by an order dated 05.12.2009. The said order was challenged by filing an Appeal from Order No.176 of 2010 in this Court, which was disposed of by order dated 11.08.2010, confirming the order of status quo passed by the Trial Court. According to the petitioners, the respondent herein has committed a breach of the above-mentioned injunction order passed by the Trial Court and confirmed by this Court, by making construction on the suit land. The petitioners, therefore, preferred Civil Misc. Application No.65 of 2012, under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (“the Code” for short) for breach of injunction. The respondent preferred the application at Exh.85 in the said proceedings, for the appointment of a Court Commissioner. This application has been allowed by the impugned order, leading to the filing of the present petition. 4. Mr. The respondent preferred the application at Exh.85 in the said proceedings, for the appointment of a Court Commissioner. This application has been allowed by the impugned order, leading to the filing of the present petition. 4. Mr. Shital R. Patel, learned advocate for the petitioner, has vehemently submitted that the impugned order of the Trial Court is beyond the scope of the suit, as the suit property is Survey No.137, whereas the prayer made by the respondent is for the appointment of a Court Commissioner for inspection of Survey No.137 and Final Plots Nos.310, 317, 315, 305, 302, 323, 322, 282 etc. which Final Plots are not the suit land as described in the plaint. The Trial Court could not have allowed the application permitting inspection of any other area except the suit land, which is comprised of Survey No.137 Makarba. 4.1 It is further submitted that the respondent has made the application only with a view to misleading the Trial Court in the breach of injunction proceedings and to delay the matter. There was no need for the appointment of a Court Commissioner as two reports of Court Commissioners, have already been drawn though in other suits. The respondent cannot be permitted to appoint a Court Commissioner to create evidence in order to divert the attention of the Court from the breach of injunction committed by him, by creating artificial distinctions regarding carving out of final plots. 4.2 Learned advocate for the petitioners has further submitted that the Preliminary Town Planning Scheme, Makarba, has not yet been sanctioned. Only the Draft Town Planning Scheme has been sanctioned; therefore, no finality in law is attached to the Final Plots that have been carved out pursuant thereto. The said Final Plots are subject to variation and change, therefore, it cannot be said that the boundaries of the Final Plots carved out of Survey No.137 have been conclusively demarcated. The shape, size and location of the Final Plots can vary till the finalisation of the Preliminary Town Planning Scheme. 4.3 It is contended that the respondent has made a false statement in the affidavit-in-reply filed in the present petition, to the effect that the Preliminary Town Planning Scheme has been sanctioned, in order to mislead the Court. The shape, size and location of the Final Plots can vary till the finalisation of the Preliminary Town Planning Scheme. 4.3 It is contended that the respondent has made a false statement in the affidavit-in-reply filed in the present petition, to the effect that the Preliminary Town Planning Scheme has been sanctioned, in order to mislead the Court. The respondent is trying to divert attention from the suit property which is Revenue Survey No.137, where a breach of injunction has been committed by it, by praying for appointment of a Court Commissioner for the inspection of various Final Plots in addition to Survey No.137. This is done only with a view to saving himself in the proceedings for breach of injunction. By asking for the inspection of the final plots, the respondent is trying to create evidence in his favour, which is not permissible. 4.4 It is further contended on behalf of the petitioner that the Trial Court ought not to have allowed the application of the respondent, insofar as the inspection of final plots are concerned, though the petitioner has no objection if Survey No.137 is inspected by the Court Commissioner. By allowing the application of the respondent, the Trial Court has acted beyond the scope of the proceedings. The suit land is Survey No.137, and an issue has been framed in respect of it, therefore, no order could have been passed for inspection of land over and above the suit land. 4.5 In support of his submissions, learned advocate for the petitioners has placed reliance upon a judgment of this Court in Modinagar Co-operative Housing Society Ltd. and another Versus State of Gujarat and others, reported in 2006(3) GLR 2020 . 4.6 On the basis of the above submissions, it is prayed that the petition be allowed. 5. Ms. Megha Jani, learned advocate for the respondent, has moved a proposed Draft Amendment to the affidavit-in-reply filed by the respondent, wherein it is stated that in the said affidavit, an inadvertent error has been committed in paragraph-6, where it is stated that the Preliminary Scheme has been sanctioned. However, it is the Draft Town Planning Scheme that has been sanctioned and not the Preliminary Scheme. It is prayed that the word “Preliminary” appearing in the 2nd line of paragraph-6 of the affidavit-in-reply at page 253, be permitted to be replaced by the word ‘Draft’. However, it is the Draft Town Planning Scheme that has been sanctioned and not the Preliminary Scheme. It is prayed that the word “Preliminary” appearing in the 2nd line of paragraph-6 of the affidavit-in-reply at page 253, be permitted to be replaced by the word ‘Draft’. While making submissions regarding the proposed Draft Amendment, learned advocate for the respondent has submitted that all the documents produced by the respondent with the affidavit-in-reply reveal that they pertain to the Draft Town Planning Scheme. It is only by mistake that the word ‘Preliminary’ has been typed in paragraph-6 of the affidavit-in-reply; therefore in order to correct the mistake the Draft Amendment may be allowed. 5.1 It is further submitted by the learned advocate for the respondent that she has tried to tender a copy of the draft amendment to the learned advocate for the petitioners personally, but he has refused to accept it. She has even sent it by post but it has been refused. 6. Mr. Shital R. Patel, learned advocate for the petitioners, has opposed the proposed Draft Amendment. 7. Considering the aspect that the mistake that has occurred in paragraph-6 of the affidavit-in-reply filed by the respondent is an inadvertent, factual mistake, and as it has been submitted by the learned advocate for the respondent that the Draft Town Planning Scheme has been finalised and not the Preliminary Town Planning Scheme and the documents annexed to the affidavit-in-reply pertain to the Draft Town Planning Scheme, the proposed Draft Amendment deserves to be allowed. 8. Accordingly, the Draft Amendment is granted and may be carried out, within three days from the date of pronouncement of the judgment. 9. On merits, it is forcefully submitted by Ms. Megha Jani, learned advocate for the respondent that the respondent has not committed any breach of the order of injunction granted by the Trial Court. In order to bring the factual position on record, the respondent moved the application at Exh.85, for the appointment of a Court Commissioner in the proceedings for breach of injunction initiated by the petitioners. It is further submitted that it is a fact that Survey No.137 is now a part of Draft Town Planning Scheme No.26 (Makarba), which has been sanctioned on 06.11.2000. Pursuant thereto, Form F has also been issued. It is further submitted that it is a fact that Survey No.137 is now a part of Draft Town Planning Scheme No.26 (Makarba), which has been sanctioned on 06.11.2000. Pursuant thereto, Form F has also been issued. In the Sale Deed executed by the original owners in favour of the respondent, the latter has purchased only 7892 sq. meters of land from Survey No.137. This land is now comprised in Final Plot No.310. Survey No.137, which is the suit land, is a much larger area. Other final plots have been carved out of Survey No.317 and have been handed over to the allottees of the Final Plots. The construction being carried out on other Final Plots is not by the respondent. No construction has been put up by the respondent in the area of land purchased by him, which is now a part of Final Plot No.310. 10. Learned advocate for the respondent has further contended that a substantial part of the land of Survey No.137 has been consumed by a 24 meter and a 12 meter road. These roads have been laid out as a part of the Town Planning Scheme by AUDA/AMC (“the competent authority), and are situated on Survey No. 137. The Draft Town Planning Scheme has already been implemented and the competent authority has sanctioned plans and granted Building Use Permission to holders of other Final Plots on Survey No.137. It is emphasised on behalf of the respondent that other Final Plot holders have put up construction on their Final Plots, which have been carved out of Survey No.137. The respondent holds Final Plot No.310 but has not put up any construction thereupon. It is contended that there is no other way to bring out the factual position in the breach of injunction proceedings, except by appointing a Court Commission for inspection of Survey No.137 as well as the Final Plots mentioned in the application of the respondent. The Trial Court has, therefore, not committed any error in allowing the said application. 11. It is further submitted that the earlier Panchnamas have been drawn in other suits and not in the suit from which the present proceedings emanate. No Panchnama has been carried out in the present suit proceedings and necessity has arisen in the present proceedings to bring out the factual position on record in the breach of injunction proceedings. 12. 11. It is further submitted that the earlier Panchnamas have been drawn in other suits and not in the suit from which the present proceedings emanate. No Panchnama has been carried out in the present suit proceedings and necessity has arisen in the present proceedings to bring out the factual position on record in the breach of injunction proceedings. 12. It is further submitted that no legal or jurisdictional error has been committed by the Trial Court while passing the impugned order. This Court, therefore, may not interfere by exercising its supervisory jurisdiction under Article 227 of the Constitution of India. 13. This Court has heard learned counsel for the respective parties at great length, perused the averments made in the petition, affidavit-in-reply and other documents on record. 14. It may be clarified at the outset that though learned counsel for the respective parties have made certain submissions on the merits of their respective cases in the suit as well as the application for breach-of-injunction proceedings preferred by the petitioners, this court does not consider it appropriate to deal with those submissions, as both the suit and the application under Order 39 Rule 2A are pending adjudication before the Trial Court. The focus of this Court would be whether the impugned order passed by the Trial Court, directing the appointment of a Court Commissioner to inspect Survey No.137 as well as the Final Plots mentioned in the application of the respondent, is just and proper or whether it suffers from any illegality, perversity or jurisdictional error. 15. To this end, the undisputed facts may be noticed. The suit land is Revenue Survey No.137 admeasuring 15783 sq. meters, Makarba. Special Civil Suit No.79 of 2009, out of which the present proceedings emanate, has been instituted on 18-2-2009, as per the date mentioned in the plaint. It is an undisputed position that the Draft Town Planning Scheme No.26 (Makarba) has been sanctioned on 6-1-2000 and Final Plots have been carved out of Survey No.137 (the suit land). These Final Plots have been handed over to the respective allottees and some of them have got plans sanctioned, obtained Building Use Permission and have put up construction upon the Final Plots held by them. These Final Plots have been handed over to the respective allottees and some of them have got plans sanctioned, obtained Building Use Permission and have put up construction upon the Final Plots held by them. It is also not disputed that pursuant to the finalisation of the Draft Town Planning Scheme, a 24 meter Road and 12 meter Road have been constructed by the competent authority. These are Town Planning roads. These roads have taken up a substantial portion of Survey No.137 (the suit land). This factual position is evident from the maps of the Draft Town Planning Scheme No.26 (Makarba) prepared by AUDA, placed on record at Annexure R/2 and R/3 (running pages No.298 and 299 of the petition) by the respondent along with the affidavit-in-reply. No rejoinder has been filed by the petitioners to the affidavit-in-reply and neither has any other documents to the contrary been placed on record by them. 16. The factual position on the ground, insofar as the suit land of survey No.137 is concerned, appears to be that it is subject to the implementation of the Draft Town Planning Scheme No.26 (Makarba), which was sanctioned on 06.11.2000, much before the institution of the suit. In implementation of the T.P. Scheme, several Final Plots have been carved out from the suit land. The respondent claims to have purchased land admeasuring 7892 sq. meters only, out of the suit land of Survey No.137, which is a much larger area admeasuring 15783 sq. meters. The respondent further claims that the land purchased by him is now comprised in Final Plot No.310 and that he has not put up any construction on this land, though some other Final Plot allottees have put up constructions on their Final Plots. According to the respondent, it is only by ordering an inspection of the Final Plots as well as the suit land of Survey No.137, can the factual position regarding whether the respondent has committed a breach of the injunction or not, be ascertained by the Trial Court 17. On the other hand, the petitioners assert that since the suit land as described in the plaint is Survey No.137, the Trial Court ought not to have granted inspection of any other land or Final Plots. On the other hand, the petitioners assert that since the suit land as described in the plaint is Survey No.137, the Trial Court ought not to have granted inspection of any other land or Final Plots. According to the petitioners, by permitting inspection of Survey No.137 and the Final Plots carved out of it, the Trial Court has exceeded its jurisdiction by going beyond the scope of the suit proceedings. 18. In order to evaluate the merits of the respective submissions, it may be pertinent to advert to the provisions of Order 26 and Rule 9 of the Code, which read as below:- “9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” (emphasis supplied) 19. This provision endows discretion upon the Court to issue a commission in order to carry out a local inspection of a property which is the subject-matter of dispute, if it considers such inspection to be requisite or proper for the purpose of elucidating any matter in dispute. In the present case, the dispute is whether the respondent has committed a breach of the order of status-quo granted by the Trial Court, as confirmed by the High Court, by putting up construction on the suit land. 20. The power of the Court to order a local inspection is also contained in Section 75 of the Code and can be exercised for several purposes, as indicated in the said Section, including the purpose of making a local investigation (Section 75(b) of the Code). There is, therefore, no doubt regarding the power of the Trial Court to issue a Commission for the inspection of the property in dispute. 21. Whether, in the present case, the power and discretion vested in the Trial Court by the above provisions of law have been properly exercised or not, is the question to be determined. There is, therefore, no doubt regarding the power of the Trial Court to issue a Commission for the inspection of the property in dispute. 21. Whether, in the present case, the power and discretion vested in the Trial Court by the above provisions of law have been properly exercised or not, is the question to be determined. In order to do so, it is necessary to understand the context in which the application for the appointment of a Court Commissioner has been made by the present respondent. The petitioners have made an application under Order 39 Rule 2A for breach of injunction against the respondent, alleging that the respondent has put up construction on the suit land in spite of an order directing the maintenance of status-quo. In the said proceedings, the respondent has made the application under Order 26 Rule 9 of the Code, for local inspection, so that it may be clear to the Court whether the allegation of the petitioners is correct, or not. In the above factual position, the Trial Court has, in the view of this Court, rightly exercised the power vested in it to issue a Commission in order to ascertain the factual position. 22. The controversy is whether the Trial Court committed an error of law and jurisdiction by directing the inspection of Survey No.137 (the suit land) and the Final Plots as mentioned in the application of the respondent. 23. It deserves to be noted that the Draft Town Planning Scheme No.26 (Makarba) has been sanctioned on 06.11.2000. The Preliminary Town Planning Scheme has not yet been sanctioned. It is a settled position of law, as laid down by this Court in Modinagar Co-operative Housing Society Ltd. and another Versus State of Gujarat and others, (Supra) (cited on behalf of the petitioners) that unless the Final Town Planning Scheme is sanctioned, the allottees do not become the absolute owners of the land as there may be a variation in the Final Plots. 24. In the present case, there is no dispute regarding the boundaries of the various Final Plots or the Development Permission granted by the competent authority to the allottees. The dispute is regarding whether the respondent has committed a breach of injunction. 24. In the present case, there is no dispute regarding the boundaries of the various Final Plots or the Development Permission granted by the competent authority to the allottees. The dispute is regarding whether the respondent has committed a breach of injunction. Though the principles of law propounded by this Court in the above-mentioned judgment are not disputed, they would not be applicable in the factual matrix of the present proceedings. 25. There is no doubt regarding the fact that the sanctioning of the Draft Town Planning Scheme and its implementation has resulted in various changes on the suit land. Final Plots have been carved out of it and a 24 meter and 12 meter road has been built by the competent authority, taking up a substantial portion of Survey No.137. Though it is true that the Final Plots are subject to change and variation until the Preliminary Town Planning Scheme is sanctioned but in the present case, the dispute pertains to the allegation that construction has been put up by the respondent in breach of an order of status-quo. In order to ascertain the correct position, in the view of this Court, the factual position and ground realities would have to be taken into consideration by the Trial Court. The respondent claims to have purchased only 7892 sq. meters of land from out of the suit land of Survey No.137 comprising 15783 sq. meters. According to the respondent, the land he has purchased is now comprised in Final Plot No.310. It is in light of this factual position emerging from the record that the Trial Court has directed inspection of Survey No.137 and the various Final Plots carved out of the suit land. 26. The purpose of the Court in issuing a Commission is to elucidate the matter in dispute. To elucidate in the context of the present matter would mean to make clear, or more comprehensible and to shed light upon the factual position in order to resolve the dispute. Until and unless the ground realities are taken into consideration, it would not be possible for the Trial Court to ascertain the factual position. It is apparent that the suit land is subject to the implementation of the Draft Town Planning Scheme and roads have been built upon it, consuming a substantial portion thereof. Until and unless the ground realities are taken into consideration, it would not be possible for the Trial Court to ascertain the factual position. It is apparent that the suit land is subject to the implementation of the Draft Town Planning Scheme and roads have been built upon it, consuming a substantial portion thereof. Final Plots have also been carved out of Survey No.137 and are in the hands of various allottees. It may be true that until the Preliminary Town Planning Scheme is not sanctioned, there may be a variation in the Final Plots. However, the controversy is not for determining the areas or boundaries of the various Final Plots but to find out whether the respondent has committed a breach of injunction, or not. The factual position existing on the ground has rightly not been ignored by the Trial Court while passing the impugned order. The Trial Court has, therefore, correctly directed the inspection of Survey No.137 and the various Final Plots. Whether the respondent has committed a breach of injunction on the land purchased by him can only be ascertained by the Trial Court if the factual position is brought on record by the Commission. 27. Taking into consideration the fact that Survey No.137 (the suit land) is the subject of implementation of the Draft Town Planning Scheme No.26 (Makarba) and several Final Plots and a 24 meter and 12 meter road exist thereupon, in the considered view of this Court, no error of law or jurisdiction has been committed by the Trial Court by allowing the application at Exh.85 preferred by the respondent. The impugned order is just and proper and does not suffer from any illegality, perversity or jurisdictional error, warranting the interference of this Court under its certiorari and supervisory jurisdiction. 28. For the aforestated reasons, the petition is devoid of merit and deserves to be rejected. It is, accordingly, rejected. Rule is discharged. There shall be no orders as to costs. Mr. Shital R. Patel, learned advocate for the petitioners, prays for the stay of the above judgment. The request is declined.