JUDGMENT : 1. Rule. Learned advocate Mr. N.K. Majmudar waives service of notice of Rule on behalf of respondents. 2. By way of the present petition, the petitioners have challenged the order dated 24.08.2021 passed by the learned Additional Civil Judge, Palanpur below Exh.6, whereby the learned Judge has allowed the application and directed the Surveyor, DILR Office, Palanpur as a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure for preparing report and sketch/map of the site. 3. Heard learned advocate Mr. Sunil K. Shah for the petitioners and learned advocate Mr. N.K. Majmudar for the respondents. 4. It is contended in the petition that the learned Trial Judge has not granted time to file reply to the Exh. 6 application and on the first day of Notice i.e. on 23.08.2021, heard the application and order is passed. 4.1. It is further contended that on 23.08.2021, the learned Judge has not granted any time to file reply to the Exh. 6 application and on the very day Exh. 6 application was heard and on the next day order is passed. Therefore, the same is against the principles of natural justice and violating Article 14 of the Constitution of India. 5. Learned counsel for the petitioners urged and vehemently argued that in the present case, as per the contents of petition, no time has been granted to file any defence nor any reply and straight way the order is passed, which is nothing but collecting the evidence. Therefore, the impugned order is against the settled principles of law and the same deserves to be quash and set aside and application be allowed. 6. Per contra, learned advocate Mr. N.K. Majmudar for the respondents has drawn the attention of this Court at Annexures - ‘D’ at page 43 and ‘E’ commencing from page 44 of the compilation and contended that sufficient time was given. Application was of dated 12.08.2021 and 23.08.2021 and application was heard, Notice was also served on 19.08.2021 and therefore, as such sufficient time was given. Further written statement was filed on 24.08.2021 and therefore, as such, there is no error committed by the learned Trial Court to arrive at conclusion by allowing the application of Court Commissioner or Surveyor through DILR. Further written statement was filed on 24.08.2021 and therefore, as such, there is no error committed by the learned Trial Court to arrive at conclusion by allowing the application of Court Commissioner or Surveyor through DILR. It is further urged that the learned Trial Court has placed reliance upon different decisions and after discussing in detailed, order is passed, there is no question of interference as per the settled principles of law. 7. At the outset, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 , wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon’ble Supreme Court, read as under: “57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)]. 58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P. and others vs. Dr. Vijay Anand Maharaj - AIR 1963 SC 946 , page 951]. 59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. 60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. 60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [ AIR 1955 SC 233 , para 20 page 243]}. 61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court. 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 8. The Apex Court in a recent decision in Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 has observed as under: “13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Considering. This is impermissible. The finding of the High Court that the appellate forum’s decision was perverse and the manner in which such finding was arrived at was itself perverse.” 9. Regard being had to the arguments advanced by both the sides and also perusing the impugned order passed by the learned Trial Court, it appears that the learned Court below has given sufficient time to both the sides and it is not the case when very same date, order is passed. 10. Re-visiting the facts, it appears that the original application for Court Commissioner was given on 12.08.2021 and order under Challenge is passed on 24.08.2021. 10. Re-visiting the facts, it appears that the original application for Court Commissioner was given on 12.08.2021 and order under Challenge is passed on 24.08.2021. Therefore, ex facie, it is not the case in the opinion of this Court that the order is passed on the same day. 11. It is to be noted that on perusal of impugned order dated 24.08.2021, it is observed by the learned Additional Civil Judge, Palanpur, it is mainly submitted by the learned advocate for the defendants that the suit of the plaintiffs is itself is not maintainable and that the plaintiff wants to bring on record the evidence by Court Commissioner in support of their allegations and collection of evidence is not permissible in this way. It is also argued by the learned advocate for the defendants that there is nothing on record to suggest that the defendants are making illegal constructions. Therefore, it is prayed by the present petitioner, the application deserves to be rejected. 12. This Court has completely called for the order passed by the learned Additional Civil Judge, Palanpur, who has meticulously passed reasoned order discussing the different decisions including case of K.Dayanand And Another vs. P. Sampath Kumar and also discussed the decision rendered in the case of Ahmedabad Municipal Corporation v. Vijay Owners’ Association reported in [2000(3)GLR 2505] and also discussed the decision of the Madhya Pradesh High Court in the case of Smt. Teena Pandey v. Dr.Kirnesh Pandey in MP No.2406/2019 dated 08.07.2019 and also discussed the decision of the Madras High court in the case of PG Murugesan v. Advocate Bar Association in CRP 60 of 2014 dated 22.03.2017 and also discussed the case of Andhrapradesh High Court in CRP No. 338 of 2016 dated 04.11.2016 in the case of Bandi Samuel & Another v. Medida Nageswara Rao, learned Civil Judge, Palanpur has discussed the scope and object of Order 26 Rule 9 of the Civil Procedure Code is not to assist a party to collect evidence where the party can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 inter alia for elucidating any matter in dispute to avoid adducing of much oral evidence by consuming time of Court and parties and ultimately with no possibility of practical approach for accurate determination of the lis. No doubt, before appointing advocate Commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. Court has to keep in mind therefrom to decide whether there is an actual necessity to appoint advocate commissioner to decide any real controversy between parties. Therefore, the learned Additional Civil Judge has discussed each and every aspect in the impugned order and this Court is of the opinion that as such, no case is made out to interfere the impugned Order by this court under Article 227 of the Constitution of India and therefore, the petition is devoid of merits and is hereby dismissed accordingly. Rule is discharged.