Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 118 (GUJ)

Jyotsanaben R Patel v. State Of Gujarat

2024-01-16

DEVAN M.DESAI

body2024
JUDGMENT : 1. Rule returnable forthwith. Mr. Aditya Davda, learned Assistant Government Pleader waives service of notice of Rule for respondent Nos.1 to 4. The board reflects that learned advocate Mr. Deepak Sanchela appears for and on behalf of respondent No.5, but he remained absent. 2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today. 3. Heard learned advocate Mr. Prit U. Shah for the petitioner and learned Assistant Government Pleader Mr. Aditya Davda for the respondents. Perused the record. 4. By way of this petition, under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “14(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 27.3.2023 passed by learned Principal Senior Civil Judge, Vyara below application Exh.7 moved by the petitioner in Special Civil Suit No.1 of 2020 and further be pleased to allow the aforesaid application below Exh.7 and direct carrying out process of appointment of Court Commissioner by appointment of competent officer/person in time bound manner (at Annexure D hereto) (B) During the pendency and till the final disposal of the present petition, Your Lordships may be pleased to stay the further proceedings of Special Civil Suit No.1 of 2020 pending before the Principal Senior Civil Judge, Vyara (at Annexture A and B hereto). (C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to grant stay/order status quo position of subject property as is forming part of Special Civil Suit No.1 of 2020 pending before the Principal Senior Civil Judge, Vyara and even undertaken by defendants vide undertaking recorded in Annexure I Colly hereto); (D) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order and direct Hon’ble Principal Senior Civil Judge, Vyara to decide and dispose off Application seeking interim injunction Exh.5 (Annexure B) hereto in time bound manner on or after disposal of present petition.” 5. Learned advocate for the petitioner has submitted that the petitioner – original plaintiff has filed a Special Civil Suit No.1 of 2020 before the learned Senior Civil Judge at Vyara, Tapi for the reliefs, more particularly, relief to secure possession, relief of adverse possession and permanent injunction. An application Exh.7 was filed by the present petitioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’) for appointment of Court Commissioner. It is mainly submitted that the purpose of having a Court Commissioner is to ascertain the correct number of the disputed property and more particularly for the reasons mentioned in the application. 6. On 27.3.2023, the learned Principal Senior Civil Judge, Vyara rejected the application. It is submitted that on the application Exh.7, learned advocate for the defendants have made an endorsement `no objection.’ Thus, when the defendants have no objection in having the Court Commissioner, the learned trial Court could not have dismissed the application for an appointment of the Court Commissioner. 7. It is further submitted that the purpose of having the Court Commissioner was to strengthen all the contentions raised in the injunction application and the documents filed in support thereof. Another purpose of having Court Commissioner is reflected in paragraph No.5 of the application. 8. Learned advocate for the petitioner has further submitted that Order 39 Rule 7 of the Code prescribes the provision that on an application of any party, the Court may make an order to inspect the suit property. Order 39 – Rule 7 is reproduced hereunder: “7. Detention, preservation, inspection, etc., of subject-matter of suit.— (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,— (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expendient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule.” 9. Learned Assistant Government Pleader appearing for respondent Nos.1 to 4 has vehemently objected and has relied upon the affidavit-in-reply and has contended that the land belonged to the ownership of the Government and it was a Gauchar land initially and for one year, the land was given to the plaintiff for having a temporary shed over the suit property. 10. It is the say of the learned AGP for the State that on perusal of the contentions raised in the Written Statement also, the dispute is raised with regard to the so called possession of the plaintiff. It is the say of the original respondent that the possession of the plaintiff qua suit property is illegal and for removal of illegal construction over the suit property, the notices were issued to the plaintiff and other encroachers. 11. Thus, it is submitted that the purpose of having a Court Commissioner is nothing but an attempt to gather evidence with regard to the possession aspect. 12. Considered the submission of learned advocates for the respective parties. 13. For the limited purpose, Order 26 – Rule 9 of the Code is reproduced hereunder: “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.” 14. Thus, the purpose of having a Court Commissioner is to have the legal investigation 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. None of the ingredients are found in the application Exh.7 filed by the plaintiff/petitioner. 15. Thus, the purpose of having a Court Commissioner is to have the legal investigation 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. None of the ingredients are found in the application Exh.7 filed by the plaintiff/petitioner. 15. Admittedly, the suit is claiming reliefs regarding possession and there is serious dispute with regard to the nature of possession retained by the petitioner – plaintiff. 16. Even if the original defendants have endorsed `no objection’ in granting the application, the ultimate discretion vests with the Court whether to grant or reject the application. Thus, having no objection in granting the application has no importance. 17. In the present case, even if there is no dispute for the original defendants regarding appointment of a Court Commissioner. The Court has power to ignore such endorsement and can decide the application strictly in accordance with law. 18. In the case on hand, looking to the averments made in the application, an attempt is made to create an image that for the benefit of the hearing of the injunction application, the appointment of Court Commissioner is required. In the present set of facts, the report of the Court Commissioner is not the legal requirement. 19. The purpose of application for injunction cannot be achieved by appointment of Court Commissioner. 20. The conduct of the plaintiff is nothing but to create and collect evidence of possession which is not permissible and which is also outside the scope of order 26, Rule 9 of the Code. 21. It is absolutely a hollow submission that even under the provisions of Order 39 Rule 7 of the Code, the application Exh.7 could have been granted and the learned trial Court had jurisdiction to exercise the powers vested under Order 39 Rule 7 of the Code. 22. The provisions of Order 39 Rule 7 of the Code is absolutely different and it has no connection with the provisions of Order 26 Rule 9 of the Code. The suit is not under the provisions of Order 39 Rule 7 of the Code. 23. 22. The provisions of Order 39 Rule 7 of the Code is absolutely different and it has no connection with the provisions of Order 26 Rule 9 of the Code. The suit is not under the provisions of Order 39 Rule 7 of the Code. 23. The petitioner has tried to invoke two different provisions which are set out in the Code for different purposes when the suit itself is not for detention or inspection as contemplated under Order 39 Rule 7 of the Code. The application Exh.7 is not maintainable under the provisions of Order 39 Rule 7 of the Code. The learned trial Court has observed that no fruitful purpose would be served by appointing the Court Commissioner of the disputed property. There is no reason to interfere with in such finding as the purpose of having Court Commissioner is to gather and collect evidence. The Court cannot be an instrument in collecting evidence for the parties. 24. With the above observations, the present petition lacks merit and the deserves to be dismissed and accordingly, it stands dismissed with no order as to costs. Rule is discharged. 25. In view of dismissal of the main matter, connected Civil Application will no longer survive and the same stands disposed of accordingly.