Gujarat High Court
Vikesh Chandrakant Patel vs Bimalkumar Chandrakant Patel on 1 July, 2025
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8561 of 2025
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VIKESH CHANDRAKANT PATEL
Versus
BIMALKUMAR CHANDRAKANT PATEL & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/07/2025
ORAL ORDER
1. Heard learned advocate Mr.Jamshed Kavina for the petitioner.
2. As far as possible, the parties will be referred to as per their original position before the Trial Court.
3. THE SHORT FACTS OF THE CASE 3.1 The petitioner herein is original defendant no.2 of Regular Civil Suit No.26 of 2007 filed by respondent no.1 herein, whereas respondent nos.2 and 3 are defendant nos.1 and 3 of the aforesaid suit respectively. 3.2 The suit came to be filed seeking declaration that plaintiff is sole owner of suit property, which is occupied by him. The Panchnama was carried out at the given point of time in the year, 2007. The Trial Court initially granted Page 1 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025 NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined injunction in favour of plaintiff but later on, rejected injunction, prima facie, observing that plaintiff and defendants both are having common interest in the suit property, which appears to have been purchased by their father/ husband respectively.
3.3 After long time, a counter claim came to be filed by defendant no.2 against plaintiff as well as defendant no.1 contending, inter alia, that during the pendency of suit, the plaintiff has damaged the suit property by demolishing some portion of wall covering the suit property and accordingly asked for a declaration that plaintiff has no right to say the suit property and not to interfere with the possession of defendant no.2 by using any force. Such counter claim appears to have been filed on 23rd March, 2021 and on very day, the impugned application came to be filed by defendant no.2 below Exh. 146 under Order 26 Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC"). 3.4 At the first instance, the Trial Court vide its order dated 16th November, 2024 has rejected the impugned Page 2 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025 NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined application against which, defendant no.2 had preferred a writ application being Special Civil Application No.2419 of 2025, which was not pressed by defendant no.2 with a view to approach the Trial Court as according to defendant no.2, he was not heard by Trial Court be passing the aforesaid order.
4. It appears that on approaching again before the Trial Court, the Trial Court though heard the matter at length but ultimately rejected impugned vide its order dated 27 th March, 2025 against which, the present writ application is filed.
5. SUBMISSIONS OF THE PETITIONER 5.1 Learned advocate Mr.Kavina would submit that Trial Court has not assigned any independent reasons than what has been observed by it in first round of the matter, thereby, committed serious error of law in adjudicating impugned application.
5.2 Learned advocate Mr. Kavina would submit that there is no embargo under the CPC that once an application filed under Order 26 Rule 9 of the CPC, whereby a Court Commissioner was appointed, again such an application at a Page 3 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025 NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined later point in time cannot be filed.
5.3 Learned advocate Mr. Kavina further submits that to bring the truth on record and to elucidate the court to resolve the main controversy germane in the counter claim, it was necessary to appoint a Court Commissioner, for which the impugned application was filed, which was required to be allowed.
5.4 Learned advocate Mr. Kavina further submits that when the suit property got damaged by the plaintiff, to bring such a fact on record, it was incumbent upon the Trial Court to appoint a court commissioner.
5.5 To buttress his argument, learned advocate Mr. Kavina would rely upon decision of the Bombay High Court in the case of Sanjiv K. Simepurskar vs. Dhaku Tukaram reported in 2022 SCC OnLine BOM 2230.
5.6 Making the above submission, learned advocate Mr.Kavina would request this Court to allow the present writ application.
6. No other and further submissions are made. Page 4 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025
NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined
7. ANALYSIS
8. At the outset, it is required to be observed that the facts, which are stated hereinabove, are not disputed. The Trial Court has not granted any injunction in favour of the plaintiff, whereby, neither the plaintiff nor the defendant was injuncted to maintain the status quo of the suit property.
9. Prima facie, reading such order while refusing the impugned order, it appears that the suit property belongs to the father of the plaintiff and defendant no. 2 and the husband of defendant no. 1, wherein they are claiming to have resided. The counterclaim was filed in the year 2021 with the cause that the plaintiff has damaged the suit property i.e., wall covering the suit property.
10. The plain reading of the impugned application filed by defendant no. 2 would indicate that to bring the action of the plaintiff on record by way of court commissioner's report, such application was filed which, according to this court, would amount to the collection of evidence to prove the factum stated by defendant no. 2 in his counterclaim, which is not Page 5 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025 NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined permissible in law.
11. By now, it is a well-settled legal position of law that the appointment of court commissioner for the collection of evidence at the instance of parties cannot be done unless the Court feels that such would be required in the peculiar facts and circumstances of the case, where any order of the Court is breached and/or violated by any of the parties.
12. The judgment which has been cited by learned advocate Mr. Kavina in support of his submission would not be helpful, inasmuch as it is not applicable to the facts of the present case. It appears that in the case before the Bombay High Court, wherein despite there being an injunction, an action of the opponent and tantamount to a breach of the injunction cited before the court, which weighed with the Court for the appointment of Court Commissioner. As observed hereinabove, such is not the case at hand.
13. It is true that the Trial Court, while rejecting the impugned application in the first round and also in the second round, which is the subject matter of the present application, Page 6 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025 NEUTRAL CITATION C/SCA/8561/2025 ORDER DATED: 01/07/2025 undefined made same observations, but that would not lead the matter, as the Court cannot infuse more on the subject matter if the impugned application remains the same, albeit the arguments of defendant no. 2 could have been better answered by the Trial Court in more satisfactory manner. But, that would not be a factor to be considered by this Court while exercising its power under Article 227 of the Constitution of India, as ultimately, the final conclusion is just, reasonable and within law, this Court would not like to interfere with the order impugned. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 (Paras. 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Paras. 15 and 16)].
14. CONCLUSION 14.1 The upshot of the aforesaid observation, discussion and reasons, I do not find any merit in the matter, which requires to be dismissed and which is hereby DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 7 of 7 Uploaded by MOHD MONIS(HC01900) on Tue Jul 01 2025 Downloaded on : Wed Jul 02 02:52:17 IST 2025