ORDER : 1. The present petition is filed praying for the following reliefs: “A. Your Lordships may be please to admit and allow this petition; B. May it please the Hon'ble Court to issue an appropriate writ, such as a writ in the nature of certiorari or any other appropriate writ, and to exercise its power of superintendence under Article 227 of the Constitution of India, and thereby quash and set aside the impugned orders dated 16/10/2023 (Exhibit 142) (Annexure - A) and 11/03/2024 (Exhibit 181) (Annexure B), passed by the Learned Principal Senior Civil Judge of Amirgadh at Amirgadh in Regular Civil Suit No. 2 of 2014. Moreover, the petitioners respectfully pray for an order directing the Learned Trial Court to issue witness summons to Mr. P.B. Patel, the court commissioner and surveyor who prepared the report dated 21/06/2017, thereby providing appropriate opportunity to both parties to examine him through oral testimony in the witness box. C. Additionally, may the Hon'ble Court pass an appropriate order directing the trail court for recording and exhibition of the court commissioner's report, including the statements of parties made in his presence, the Panchanama, and the measurement records, currently on record of the court below marked as Exh.77 and designated as Mark 77/1 to Mark 77/4. D. During the pendency and final disposal of the present petition, may the Hon'ble Court please issue an order to stay the further proceedings of RCS No. 2 of 2024, currently pending before the Learned Principal Senior Civil Judge of Amirgadh at Amirgadh. Any other relief that may deem fit and proper in the facts and circumstance of the case may please be grated.” 2. Heard learned advocate Mr. Rajan J. Patel for the petitioners and learned advocate Mr. S.P.Majmudar with learned advocate Mr. Vedant D. Gaikwad appearing on caveat for the respondent. 3. By way of the present petition, two orders are sought to be challenged. One was passed on 16.10.2023, much prior i.e. six months back with an identical application, for summoning the witness at Exh.142, and the same came to be rejected by the learned Presiding Officer. Thereafter, another application dated 11.03.2024 is filed below Exh.181 in the present suit i.e. Regular Civil Suit No.2 of 2014 to examine the same witness and that application is rejected vide order dated 11.03.2024 and therefore, the present petition is filed challenging both the aforesaid orders. 4. Thereafter, another application dated 11.03.2024 is filed below Exh.181 in the present suit i.e. Regular Civil Suit No.2 of 2014 to examine the same witness and that application is rejected vide order dated 11.03.2024 and therefore, the present petition is filed challenging both the aforesaid orders. 4. Learned advocate Mr. Rajan J. Patel for the petitioners has submitted that in view of earlier order dated 08.12.2021 passed by the Coordinate Bench of this Court in Special Civil Application No.3302 of 2019, whereby the Court has permitted to carry out the commission work by the Second Court Commissioner. It is submitted by learned advocate Mr. Patel that the first report cannot be brushed aside and therefore, by considering the provisions of Order XXVI Rules 9 & 10 of the Code of Civil Procedure, 1908 (C.P.C.), the present petitioners have filed the application to examine the Court Commissioner as a witness and to issue summons to the Court Commissioner and the same came to be rejected by the trial Court, and that order of rejection is apparently illegal, improper and warrants interference by this Court. He has relied on the judgment of the High Court of Punjab and Haryana in the case of Balbir Dewan V. Naveen Chander reported in AIR 1989 PUNJAB AND HARYANA 257. He has also relied on the judgment of Kerala High Court rendered in the case of Sivaraman V. V. C. Narayanan reported in AIR 1987 KERALA 156 and the judgment of Andhra Pradesh High Court rendered in the case of Smt. Vadda Rajeswaramma V. DR. V.L. Narasimha Charyulu and others reported in AIR 1998 ANDHRA PRADESH 202, and has submitted that in view of the aforementioned decisions, the Court has to consider the provisions of Order XXVI Rules 9 & 10 of the C.P.C., which read as under: “9. V.L. Narasimha Charyulu and others reported in AIR 1998 ANDHRA PRADESH 202, and has submitted that in view of the aforementioned decisions, the Court has to consider the provisions of Order XXVI Rules 9 & 10 of the C.P.C., which read as under: “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. 10. Procedure of Commissioner.— (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit. Commissioner may be examined in person.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.” 4.1 He has further submitted that the Court may look into the objections raised by the other party to the report of Court Commissioner and may permit to examine the Court Commissioner, which is not done in the present case and therefore, the present impugned orders are bad in the eye of law and will cause serious prejudice to the rights of the present petitioners, and therefore, he has prayed to allow this petition by exercising powers under Article 227 of the Constitution of India. 5. Learned advocate Mr. S.P.Majmudar appearing for the respondent has drawn my attention to the provisions of Order XVI Rule 1, which reads as under: “1. List of witnesses and summons to witnesses.- (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.” 5.1 He has submitted that the stage has gone as thereafter, the trial has proceeded further. Initially, both the parties; plaintiffs as well as defendant have given closing pursis, thereafter, plaintiffs have once again prayed to re-examine one witness at Exh.176. The trial Court has permitted to re- examine the witness qua that particular person viz. Initially, both the parties; plaintiffs as well as defendant have given closing pursis, thereafter, plaintiffs have once again prayed to re-examine one witness at Exh.176. The trial Court has permitted to re- examine the witness qua that particular person viz. Bhikhabhai Maganbhai Patel only, and accordingly, the evidence was led and concluded. He has further submitted that it transpires that the present petitioners have filed the first application on 12.10.2023 which was rejected and on the same ground, the second application has been filed without disclosing the fact that the first application below Exh.142 has already been rejected, and application at Exh.181 is also now rejected by the trial Court. Now, the proceeding of the trial is almost concluded and the same is at the stage of arguments of the parties and at this stage, allowing this application will certainly cause great prejudice, more particularly, the report of the Court Commissioner is given pursuant to the order dated 21.06.2017 of the trial Court, which is now relied on and on that basis, the said witness DILR is now sought to be examined at such a belated stage and, therefore, he has prayed to dismiss the present petition as the trial Court has rightly exercised its discretion in judicious manner and there is no error or perversity in the order passed by the trial Court. 6. I have considered the rival submissions made at the bar and also considered the fact that the suit is filed in the year 2014. Thereafter, one Court Commissioner was appointed and pursuant to the second application, the Court Commissioner is not appointed by the trial Court. Hence, such proceedings came to be challenged before this Court by way of Special Civil Application No.3302 of 2019, whereby, the Co-ordinate Bench of this Court made several observations in the said order while considering the said petition, more particularly, the relevant para is para No.5 of that judgment, which reads as under: “5. Having gone through the submissions made by learned advocates for the respective parties as well as documents produced on record, it appears that vide Exh.9, on first round, present petitioner, being a defendant, requested to appoint the Court Commissioner and submit a report prepared by the Court Commissioner through DILR on 11.03.2014. The respondent objected the said application vide Exh.11. The Trial Court dismissed the application after hearing the parties vide order dated 06.08.2014. The respondent objected the said application vide Exh.11. The Trial Court dismissed the application after hearing the parties vide order dated 06.08.2014. The said order was challenged by the present petitioner in Special Civil Application No.12402 of 2014. This Court, on 28.02.2017, was pleased to allow the petition by quashing and setting aside the order passed below Exh.9 in Regular Civil Suit No.2 of 2014 on 28.02.2017 and directed the Trial Court to appoint the competent person as Court Commissioner, who can measure the lands bearing Revenue Survey Nos.16 and 19 of Village: Janjarva, Tal.: Amargadh, Dist.: Banaskantha and submit his report along with the map of the lands in question as expeditiously as possible, preferably within a period of two months from the date of receipt of the writ or certified copy of the order whichever is earlier. Thereafter, as per the order passed by this Court in the aforesaid Special Civil Application, notice was issued by the land surveyor and Court Commissioner dated 12.06.2017 to the petitioner as well as the respondent informing them to remain present on 21.06.2017 for the purpose of carrying out the measurement of the land in question. The Court Commissioner produced the panchnama/ rojkam as well as measurement-sheet/map before the Court on 30.06.2017 below Exh.77. As per the submissions of the petitioner, the aforesaid measurement- sheet/map prepared by the Court Commissioner was completely false and contrary to the actual position and measurement of the lands in question. If we refer the affidavits of the panchas viz.Maganlalbhai Patel and Jabrudin Sheraji Musla, they have stated in their affidavits that map as well as measurements and the panchnama were not prepared in their presence. It was further stated in their affidavits that false map was created by the Court Commissioner. At Page-119, it is stated that the panchnama was prepared in presence of panchas. The petitioner can certainly object the panchnama/map/measurement prepared by the Court Commissioner if found necessary. If we consider the affidavits of two panchas, they have clearly stated that panchnama/map/ measurement was not prepared in their presence or as per the order. Application Exh.:80 preferred by the present petitioner was withdrawn to the extent of initiating proceedings under the provisions of the Contempt of Court Act and not to appoint the Court Commissioner and/or prepare the panchnama. Application Exh.:80 preferred by the present petitioner was withdrawn to the extent of initiating proceedings under the provisions of the Contempt of Court Act and not to appoint the Court Commissioner and/or prepare the panchnama. Thereafter, it also appears that another application was submitted by the petitioner to appoint the lands surveyor as Court Commissioner and prepare the panchnama by himself. Appointment of the Court Commissioner and prayer in this respect was never withdrawn by the present petitioner before the Trial Court.” 6.1 Furthermore, in para No.6 of that order, the Co-ordinate Bench of this Court has granted the prayer. 7. I have considered the submissions made at the bar and whereby, learned advocate Mr. Patel for the petitioners has strongly relied on the fact that the trial Court can exercise powers under Order XXVI Rule 10 at any stage of the trial to do complete justice to the parties. He has also relied on the three judgments of different High Courts, whereby, the Court has permitted and observed that unless the First Court Commissioner’s report is set aside or ordered to be deleted, that can be considered in the evidence and the present application which is filed to examine the person from the DILR Office, who has prepared the report, is required to be allowed by considering Order XXVI Rule 10. This is not appealing to this Court on the simple reason that the application is filed for the report of the year 2017 vide Exh.142 for the first time on 12.10.2023 and the trial Court has rejected that application and that order is now challenged before this Court and thereafter, application below Exh.181 is filed without mentioning the application filed below Exh.142. In that application for the same prayer, on the earlier occasion, was filed in the year 2023 and the present application under Exh.181 is filed on 11.03.2024 which is also rejected by the trial Court vide order dated 11.03.2024 by observing that, the application filed earlier is rejected. The trial Court has not given further reasons, but has rejected the application on that ground only as the earlier application had already been rejected. 8. Being aggrieved by the impugned orders passed by the trial Court, the present petition is filed challenging both the orders by realizing the mistake that the earlier order passed below Exh.142 has not been challenged. 8. Being aggrieved by the impugned orders passed by the trial Court, the present petition is filed challenging both the orders by realizing the mistake that the earlier order passed below Exh.142 has not been challenged. Moreover, the petitioners have also realized the blunder committed by them that they have not stated anything regarding the earlier application filed or the order passed below Exh.142, in the application dated 11.03.2024 filed below Exh.181. Therefore, an attempt is made to challenge both the orders in the present petition, which is otherwise not permissible. Considering the peculiar facts of the case, such attempt is nothing but amounts to abuse of process of law as the trial has already commenced and the report of the Court Commissioner has already been prepared in the year 2017. The petitioners have actively participated in the proceedings and have led the evidence of the respective witnesses and cross-examined the witnesses of the other side. Thereafter, when the closing pursis is given and the plaintiff has filed an application to examine one witness namely Bhikabhai Maganbhai Patel, the Court has granted permission to examine that witness only. The present petitioners have filed the application firstly on 12.10.2023 and thereafter, second application on the same ground was filed at Exh.181 on 11.03.2024, without disclosing about the first application. This shows the conduct and intention of the petitioners to delay the proceeding of the trial. Moreover, the opportunity was available to the petitioners when the report of Court Commissioner was placed on record in the year 2017, not only that, when the evidence was going on, they could have filed application to examine witnesses, but now when the trial is almost concluded and at the stage of arguments, such application is filed at Exh.181 without disclosing earlier facts, this amounts to suppression of material facts and also with an intention of the petitioners to take undue advantage of the process of law. Otherwise also, the Court has rightly rejected such application which is filed after much delay and without any proper basis or reasons with the only intention to delay the proceedings of the trial and therefore, the judgments of different High Courts, which are cited at the bar by the learned advocate for the petitioners, have persuasive value but in the facts and circumstances of the present case, the said judgments are not applicable as the petitioners have suppressed material facts before the trial Court by not disclosing the earlier application and the trial Court has rightly rejected the application below Exh.181 by observing that the earlier application has also been rejected and therefore, no interference is called for as the petitioners are trying to take undue advantage of the process of the law. Also, no merit is found as well as no perversity or illegality is committed by the trial Court, and no error of law is committed by the trial Court and it has rightly exercised its discretion by rejecting the said application after considering the totality of the facts and circumstances of the case. Therefore, the present petition is required to be dismissed. 9. Accordingly, the present petition is dismissed with no order as to costs. 10. This Court is inclined to impose a heavy cost on such litigants for going with such litigation, but on the request made by the learned advocate for the petitioners, the Court has refrained from doing so.