JUDGMENT : 1. This petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order dated 03.06.2019 passed by the learned 15th Additional Senior Civil Judge, Surat below application Exhibit-15 in Special Civil Suit No. 87 of 2019. 2. The background of fact which has generated the present proceedings is that original plaintiff nos. 2 and 3 in this petition claimed to have purchased a flat bearing A/11 and A/12 in the scheme known as ‘Bhavi Darshan Shankul’ which is situated on the the land bearing revenue survey No.3 TP Scheme No. 4 bearing no. 35 and 34 whereas Final Plot No. 41 admeasuring 26572 sq.mtrs. It is the case of the petitioner that present respondent no. 1 is merely a Power of Attorney holder of respondent nos. 2 and 3, whereas respondent no. 4 who is original plaintiff no. 4 claims to have purchased a flat bearing No.B/32 in the said scheme. The grievance of the petitioner is that though the original plaintiffs having only three flats they have filed the aforesaid Special Civil Suit No. 87 of 2019 respect of entire scheme spread over 26572 sq.mtrs., and have sought relief of cancellation of partnership deed executed between the defendants over and above the restoration of the scheme ‘Bhavi Darshan Shankul’. It is further asserted by the petitioner that original plaintiffs claimed to have submitted the plaint in a representative capacity and as such, filed an application under Order 8 Rule 1 of the Code of Civil Procedure, which came to be allowed on 27.02.2019. Pursuant to this order of the learned trial court, the plaintiffs have published a notice in the daily newspaper inviting interested persons and occupiers of other flats of the scheme to be joined as plaintiff and the suit which was filed on 27.02.2019 was then kept on 25.03.2019. 2.1 It is the case of the petitioner that on that day, the other defendants appeared and requested to file reply to the plaint and injunction application, but simultaneously, the original plaintiffs have filed application at Exhibit-15 for seeking appointment of Court Commissioner. 2.1 It is the case of the petitioner that on that day, the other defendants appeared and requested to file reply to the plaint and injunction application, but simultaneously, the original plaintiffs have filed application at Exhibit-15 for seeking appointment of Court Commissioner. The learned advocate for the defendants sought time to submit reply to this Exhibit-15, but then, according to the petitioner, the said application Exhibit-15 was taken up for hearing on 26.03.2019 on which date, Special Civil Suit was brought on board and on that very day i.e. on 26.03.2019, an order came to be passed. As a result of this, the petitioner was originally constrained to file petition before this Court being Special Civil Application No. 6235 of 2019. After hearing at length both the sides, this petition was disposed of vide order dated 09.05.2019 whereby a direction was issued to reconsider and re-decide Exhibit-15 by passing a reasoned order afresh. 2.2 It is the case of the petitioner that pursuant to this order, the learned trial Judge took up fresh hearing of application Exhibit-15 on 01.06.2019 and it has been asserted that with a view to rectify some inadvertence review application was filed before the High Court, but pending that without waiting for outcome of review application, hearing was concluded by the learned trial Judge and on 03.06.2019, application is allowed, granting more indulgence to the plaintiffs as has been contended by the petitioner. This order dated 03.06.2019, passed afresh practically since reiterating the very same conclusion, aggrieved by the same, the petitioner brought this petition under Articles 226 and 227 of the Constitution of India. It has been asserted that by this time, pursuant to the order which has been passed below Exhibit-26 and 28 in respect of the plaintiffs, respondent nos. 5 to 15 have been already implemented in the proceedings vide order dated 16.04.2019. It has further been contended that along with this petition, an application under Order 8 Rule 1 of the Code of Civil Procedure is also challenged by way of separate petition and by mentioning this particulars, the petitioner has invoked extra ordinary jurisdiction of this Court. 3. This petition when circulated after recording submissions of the learned counsel appearing on behalf of the petitioner on 07.06.2019. 3. This petition when circulated after recording submissions of the learned counsel appearing on behalf of the petitioner on 07.06.2019. A notice came to be issued by a reasoned order and in the meantime, the impugned order dated 03.06.2019 was ordered to be stayed and subsequently, after hearing both the sides, vide order dated 17.06.2019, the petition came to be admitted and interim relief in terms of para 7(B) was granted and it is only upon request of both the learned advocates appearing for both the sides, and with the consent of the learned advocates, since returnable date was fixed upon insistence of hearing by both the sides, the matter was taken up for hearing. 4. Additionally, the Court is also persuaded to take up the hearing of the main matter in view of the fact that in Civil Application (For vacating interim relief) No. 1 of 2019, it was insisted by both the learned counsels that as far as possible the main matter to be proceeded with and therefore, considering the orders which have been passed in Civil Application and in view of the requests of both the learned counsels, and extensive hearing, the Court has taken up the main matter for its decision. 5. Mr. I.H. Syed, learned Senior Counsel appearing and assisted by Mr. Y.H. Motiramani, learned advocate appearing for the petitioner has vehemently contended that the impugned order is not only unjust and arbitrary, but is exercise of discretion even after remand from this Court. It has been further submitted that except few paragraphs, same reasons are repeated and verbatim same reiteration has taken place and there is no independent re-look to the application and the request and as such, this mechanically exercising of power deserves to be deprecated. 5.1 Mr. Syed, learned Senior Counsel has submitted that while passing the impugned order, the tenor of the order is clearly suggesting that there is a bias reflecting in exercise of discretion. 5.1 Mr. Syed, learned Senior Counsel has submitted that while passing the impugned order, the tenor of the order is clearly suggesting that there is a bias reflecting in exercise of discretion. The bias is reflecting on account of the fact that against practically non hearing, since grievance was raised before the High Court, the learned trial Judge has explained which was not even called for by the parties to the proceedings or by even High Court and further the operative part of the order would clearly indicate that not only the application is allowed in toto, which was not earlier, but even the private litigant i.e. the plaintiff is permitted to act, as if the Court Commissioner. This is surprising move by the learned trial Judge which, according to Mr. Syed, learned Senior Counsel is a clear judicial bias and reflects vengeance against the petitioner since he has chosen to challenge the order which was passed by the learned trial Judge initially. It was pointed out by Mr. Syed that originally, when the order was passed it was merely a local inspection which was to be undertaken by the Court Commissioner and that order was also practically without hearing, but then, when the said order was set aside by this Court and directed to re-decide the application, as a counter blast to such, not only the application is allowed in total but even the plaintiff was granted liberty to execute photographs and videography as if every act is to be done by the Court Commissioner. This is absolutely, without jurisdiction travelling beyond the relief and cannot be said to be just and proper in any circumstances. As a result of this Mr. Syed has vehemently contended that this is nothing but a judicial bias reflected, which itself should be a sole ground to set aside the impugned order. For substantiating this submission, Mr. Syed has relied upon the decision of the Apex Court reported in State of West Bengal & Ors. v. Shivanand Pathak & Ors., reported in 1998 (5) SCC 513 and by referring to para 25 to 28, a request is made that on this count alone, the impugned order be set aside. 5.2 Mr. For substantiating this submission, Mr. Syed has relied upon the decision of the Apex Court reported in State of West Bengal & Ors. v. Shivanand Pathak & Ors., reported in 1998 (5) SCC 513 and by referring to para 25 to 28, a request is made that on this count alone, the impugned order be set aside. 5.2 Mr. Syed, has further canvassed a submission in addition to the principle of judicial bias and has contended that larger relief cannot be granted by the Court as the trial court is not invested with extra ordinary jurisdiction. A bare look at the prayer of Exhibit-15 would make it clear that the order which has been passed presently is without jurisdiction, beyond the scope of application and on the circumstances which are totally foreign to decide this application. 5.3 Mr. Syed, has further submitted that it is the cardinal principle that the Court Commissioner cannot be appointed to collect the evidence and here is the stage where even application for injunction is yet not taken up for hearing and therefore, before that, if all these material to allow, it would definitely prejudice the consideration of the injunction application which cannot be the object of appointment of the Court Commissioner. As a result of this, the impugned order being without jurisdiction, quite contrary to the settled position of law, the same deserves to be quashed and set aside. Mr. Syed has further submitted that the observations which have been made in order about reference to principle underline governing the grant or refusal of interim injunction which cannot be said to be very relevant to decide as to whether, the Court Commissioner to be appointed or not and as such, the impugned order cannot be said to be just and proper. As a result of this, this pre-decisive decision which has been taken by the learned trial Judge even after remand of the proceedings, deserves to be deprecated, the spirit in which reconsideration was ordered to be undertaken is not maintained by the learned trial Judge. Hence, the impugned order deserves to be set aside. Mr. Syed has further submitted that this is nothing but copy and paste exercise of discretion which is thoroughly uncalled for. Hence, the impugned order deserves to be set aside. Mr. Syed has further submitted that this is nothing but copy and paste exercise of discretion which is thoroughly uncalled for. On the contrary, the Apex Court in a decision reported in 2009 (10) SCC 564 , has clearly observed that such copy and paste exercise of jurisdiction to re-decide is uncalled for. As a result of this, in no circumstance, the impugned order is sustainable in the eye of law and by submitting all these particulars, and by referring to the reasons which are assigned and by referring to the earlier decisions which have been taken the order deserves to be set aside by granting relief as prayed for in the petition. 6. As against this, learned Senior Advocate Mr. P.C. Kavina, appearing on behalf of the contesting respondent has mainly opposed the petition on the ground that the petitioner is lurking in misapprehension. On the contrary, there appears to be no bias by the learned trial Judge and in true spirit reconsideration is done by the learned Judge and has then passed a detailed order. This exercise of discretion is not possible to be construed as perverse in any form. As a result of this, no extra ordinary jurisdiction is required to be exercised. 6.1 Mr. Kavin, learned Senior Advocate after referring to earlier order passed by this Court on page 79 onwards has contended that in no circumstance, it is possible to construe that any judicial bias is reflecting. On the contrary, the learned trial Judge was of the clear opinion that in a situation like this, when photography and videography is required to assist the Court, such discretion deserves to be undertaken and therefore, merely some paragraphs are taken from the earlier order, cannot be said a circumstance to infer any judicial bias, hence, fresh decision which has been taken is just and proper and it does not deserved to be interfered with. Mr. Kavina, the learned Senior Advocate has further submitted that the facts and the manner in which the proceedings have been undertaken in the Court below is definitely persuaded the learned trial Judge to appoint the Court Commissioner and therefore, when the Court Commissioner is appointed to assist the Court it cannot be said at least by the petitioner that no illegality is committed. On the Contrary, it is not an absolute proposition that in any case, the Court Commissioner cannot be appointed before deciding injunction application. By referring to some of the paragraphs, a contention is reiterated that the petition is meritless and there is no overreaching of any nature by the learned trial Judge. The tenor of the order impugned in the present proceedings is clearly indicating that the Court is in need of an independent assistance and that is the reason why the order is passed. Learned Senior Advocate has submitted that this is not a fit case to exercise extra ordinary jurisdiction which is equitable in nature. Mr. Kavina, learned Senior Advocate has further submitted that there is no absence of any jurisdiction, and the order is passed well within the scope of discretion which is otherwise available to the learned trial Judge. As a result of this, no interference deserves in the present proceedings. Hence, a request is made to dismiss the petition in limine. 7. As against this, as rejoinder, Mr. Syed, learned Senior Advocate has submitted that the learned trial Judge has exercised the discretion under Order 26 Rule 9 of CPC which is not investing discretion in the trial court. As a result of this, there is hardly any case made out to oppose the petition. Mr. Syed, learned Senior Advocate has also referred to the provisions contained under Order 26 Rule 9 of CPC and has submitted that the order which has been passed is contrary to the principle of pleadings as well. Hence, the petition deserves to be allowed. No other submissions have been made by the either side. Hence, the matter is kept for orders. 8. Ex-facie one circumstance is mentioned hereinafter of course, the same is not much necessary, but with a view to complete the record, pursuant to the request made by earlier advocate Mr. Viral K. Shah, on 19.06.2019, he has withdrawn his appearance on behalf of the contesting respondent no. 1 and then learned Senior Advocate Mr. Kavina has appeared with Dr. S.R. Patel, for the contesting respondent no. 1 and both sides requested to hear main matter with civil application, the hearing at length had taken place and upon request and consent of both sides, the present matter is dealt with and disposed of by the present order. 9. 1 and then learned Senior Advocate Mr. Kavina has appeared with Dr. S.R. Patel, for the contesting respondent no. 1 and both sides requested to hear main matter with civil application, the hearing at length had taken place and upon request and consent of both sides, the present matter is dealt with and disposed of by the present order. 9. Having heard the learned counsels appearing for the respective parties and having gone through material on record and the sequence of events of this petition, following circumstances are not possible to be unnoticed by this Court while arriving at an ultimate conclusion in this petition. 10. First of all, a perusal of the application as well as the relief contained therein would clearly indicate that what was prayed for, was seeking appointment of the Court Commissioner to execute necessary panchnama, videography or photography, as the same is reflecting on page 20 of the petition compilation. Even a perusal of the earlier order is also indicating that the Court while passing the order had ordered local inspection of the suit property in question. Now as compared to this circumstance, after remand from this Court, what has been granted to the applicant is that not only the Court Commissioner is appointed for local inspection, but surprisingly, the original plaintiffs have been allowed to execute photography, cinematography at their expenses and were permitted to produce the same on record, which is clearly visible on page 37 of the petition compilation. So, prima facie it appears that the learned trial Judge has allowed the original plaintiffs to gather the evidence and permit them to produce at this stage of the proceedings. Thus, it appears to be clearly travelling beyond the relief which has been sought in the application and as such, the impugned order appears to be, not only arbitrary, but not in the proper spirit in which reconsideration was ordered to be undertaken and as such to that extent the grievance voiced out by the petitioner appears to be somewhat logical. 11. 11. A further perusal of the order is also reflecting that though neither the High Court nor even the parties to the proceedings have sought any justification after the remand of the proceedings, but the Court on its own has tried to clarify and convey that the facts were not properly presented on earlier occasion before the High Court, but this has never been the grievance of the contesting respondents i.e. original applicants as well. As a result of this reason, prima facie, it appears that the order is not visibly proper. Apart from that, the entire exercise undertaken after reconsideration is apparently again non dealing of several authorities which have been pressed by both the sides and the same is also reflecting in order itself that the parties have cited the same, but have not been dealt with at all. This is another facet to irregular exercise of jurisdiction. 12. Apart from that, a bare reading of the impugned order would also give an impression that some of the paragraphs are just mentioned as copy and paste from the earlier order and then routinely powers are sought to be exercised, such reasons and tenor of the order appears to be not germane. 13. In addition to this, it appears that after the remand order, which has been passed for reconsideration, the learned trial Judge has also tried to justify the issue related to civil right of the plaintiffs to seek injunction and this fact is also visible from page 35. No doubt, the learned trial Judge might have thought it fit to re-emphasis his opinion, but reading of the order reflects that reconsideration is not done in proper spirit. The issue of controversy was whether, the Court Commissioner at this stage to be appointed or not and that too when the injunction application is still awaiting for its decision after bipartite hearing which is yet to take place. The law appears to be very clear that the litigant should not be allowed to collect the evidence by way of seeking appointment of the Court Commissioner, just to have and facilitate the relief of injunction. So, instead of allowing the plaintiffs to establish or to make out a case for injunction and to seek the same, the plaintiff is permitted to gather the evidence which is not in conformity with the settled position of law. So, instead of allowing the plaintiffs to establish or to make out a case for injunction and to seek the same, the plaintiff is permitted to gather the evidence which is not in conformity with the settled position of law. The reasons which have been assigned by the learned trial Judge are not reflecting the correct position of law. As a result of this, this Court is not inclined to approve the order which has been passed by the learned trial Judge. 14. Additionally, it also appears that what has been observed by the Court below that appointment of Court Commissioner/Receiver is sought by resorting to exercise of powers under Order 26 Rule 9 of the Code of Civil Procedure, but then, the said provisions ex-facie is not attracted at this stage of the proceedings, particularly, when the suit is at a very elementary stage, in which even the injunction application has not been taken up for hearing and as such, it is not proper on the part of the learned trial Judge to grant such kind of relief and particularly, when the manner in which it has been granted in both the orders, one which is set aside only on the ground of non-hearing and another after reconsidering the same is self-explanatory, and therefore, the Court is prima facie satisfied that the petitioners have justifiably raised the grievance. At this stage, the Court is also of the opinion that the detailed order which has been passed by the Court appears to have not been properly gone into by the court below and further fact which has not been dealt with properly is that the reasons which are assigned are nothing but repetitive and it appears that no independent look is given by the court below. Even the decisions which have been cited by both the sides have not been discussed at all nor even taken care of to refer to and in such a cavalier manner, when the discretion is exercised, it appears to this Court that the order suffers from vice of non-application of mind as well as reflecting perversity, if the same is to be read as it is. As a result of this, the Court is left with no other alternative, but to exercise extra ordinary jurisdiction in the present proceedings. 15. As a result of this, the Court is left with no other alternative, but to exercise extra ordinary jurisdiction in the present proceedings. 15. The Court is also taking into consideration that here is the case in which at the initial stage only 3-4 plaintiffs have tried to raise grievance, and thereafter, certain other plaintiffs have been ordered to be joined in the proceedings, but then while seeking interim relief the plaintiffs can never be allowed to collect evidence in advance, instead of allowing them to establish their prima facie case on their own and it is quite clear that independently the plaintiffs have to establish prima facie case and they cannot rely upon the weaknesses of the defendants. Here is the case in which, the learned trial Judge has facilitated the plaintiffs to execute photography, to execute videography and then allowed them to produce on record. That part of the order is seriously reflecting a clear case of travelling beyond the relief which has been sought. Resultantly, the exercise of discretion undertaken by the learned trial Judge appears to be not in consonance with the settled position of law. Hence the same deserves to be corrected. 16. It appears that justice should not only be done, but it should appear to be done and here is the case in which the sequence of events if to be looked the grievance raised by the petitioner about bias is giving an impression justifying to some extent. At this stage, the decision of the Apex Court which has been cited by the learned Senior Advocate for the petitioner, reported in State of West Bengal & Ors. v. Shivananda Pathak & Ors., reported in 1998 (5) SCC 513 in which the Apex Court in no uncertain terms, has observed about the principle of bias. The Court has taken into consideration hence relevant observations contained in para 25-28 and since relied upon, the same are reproduced hereinafter:- “25. Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre- disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case. 26. Bias has many forms. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case. 26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy. 27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgements reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions of while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the Letters Patent Appeal, if available. 28. If a judgment is over-ruled by the higher court, the judicial discipline required that the Judge whole judgment is over-ruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the over-ruled judgment. Even if it was a decision on a pure question of law which came to be over-ruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has over-ruled that judgment, not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy”. 17. From the aforesaid observations which have been made by the Apex Court, a perusal of the record is indicating that the learned trial Judge has not in right spirit allowed the plaintiffs personally to act or discharge the role of Court Commissioner and then produce the same material on record. 17. From the aforesaid observations which have been made by the Apex Court, a perusal of the record is indicating that the learned trial Judge has not in right spirit allowed the plaintiffs personally to act or discharge the role of Court Commissioner and then produce the same material on record. Even that has not been prayed for by the plaintiffs, but surprisingly, the same is granted. So conjoint reading of the overall circumstances reflecting on record and if the same is to be considered in light of the submissions made by both the learned senior counsels, this Court is of the considered opinion, that the order passed by the learned trial Judge deserves to be quashed and set aside. The reference which has been made of Order 26 Rule 9 of the Code of Civil Procedure, the same cannot be at this stage of the proceedings used since the Court Commissioner may not be appointed to facilitate the litigant to collect or to gather the evidence before the stage of injunction issue to be decided, hence the order is unsustainable. 18. Additionally, it appears to this Court that the major portion of the order reflects copy and paste and the same has not been approved or encouraged by the Apex Court in a decision reported in 2009 (10) SCC 564 . So considering the said decision cited by learned Senior Advocate Mr. Syed, it appears to be an additional ground on which the order is assailable. Resultantly, the order impugned in the petition is not sustainable in the eye of law. 19. Since the injunction application is very much at large before the learned trial Judge, the Court would not like to express anything beyond this on merit, but is of the considered opinion that the exercise of discretion undertaken by the Court below is not just and proper. It is needless to say that said injunction application will have to be decided on its own merits without being influenced by the present order. 20. In view of the aforesaid discussion, the present petition stands allowed. The impugned order dated 03.06.2019 passed below Exhibit-15 in Special Civil Suit No. 87 of 2019 is hereby quashed and set aside. Rule is made absolute. 21. In view of the order passed in the main petition, no order is required to be passed separately in the civil application and is accordingly dismissed.