Gujarat High Court
Jalpravah Co Operative Housingsociety ... vs Kumkumben Piyushkumar Dhandhara on 2 July, 2025
NEUTRAL CITATION
C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15883 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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JALPRAVAH CO OPERATIVE HOUSINGSOCIETY LTD & ANR.
Versus
KUMKUMBEN PIYUSHKUMAR DHANDHARA & ORS.
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Appearance:
MR ANSHIN H DESAI(1020) for the Petitioner(s) No. 2
VENU H NANAVATY(7458) for the Petitioner(s) No. 1
RULE SERVED for the Respondent(s) No.
2.1,2.2,2.3,2.4,2.5,2.6,2.7,3.1,3.2,3.3,3.4.1,3.5,3.6,4.1,4.2,4.3,4.4,4.5,4.6,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/07/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Anshin Desai with learned advocate Ms.Venu H. Nanavati for the petitioners. Though served, none appears for the respondents.
2. The parties will be referred to as per their original position before the Trial Court.
3. The present application is filed under Article 227 of the Constitution of India seeking following relief:- Page 1 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025
NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined "[A] YOUR LORDSHIPS may be pleased to admit and allow this petition.
[B] 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, by quashing and setting aside the impugned order passed by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, below application exh.106, dated 4th December 2009 in Special Civil Suit No.206 of 2005, at Annexure "A" to the petition, in the interest of justice. [C] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned order passed by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, below application exh.106, dated 4th December 2009 in Special Civil Suit No.206 of 2005, at Annexure "A" to the petition, in the interest of justice.
[D] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioners, as deemed just and proper, in the facts and circumstances of the case."
4. THE SHORT FACTS OF THE CASE 4.1. The petitioners herein are original defendant Nos.5 and 6, whereas respondent No.1 is the original plaintiff of Special Civil Suit No.206 of 2005, and the rest of the respondents are original defendants No.1 to 4.
4.2. The civil suit is instituted by respondent no. 1 seeking declaration and injunction in relation to the suit property, Page 2 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined which is situated at Survey No.813 of Village Vejalpur, District Ahmedabad.
4.3. As per the case of the plaintiff, she has purchased the suit property from the legal heirs of late Jadiben, who was one of the legal heirs of Nagarji Belaji, who died and left behind three legal heirs, namely, Dayaji, Jadiben and Samjuben. As per the case of the plaintiff, she has purchased the suit land from the legal heirs of the aforesaid Jadiben by way of registered sale deed on 19th October, 2004. 4.4. The defendant Nos.5 and 6 i.e., the cooperative societies have appeared and contested the suit, contending, inter alia, that they are the owners of the suit property by way of registered sale deed executed by the legal heirs of Nagarji Belaji on 17th July, 1999, and as per the revenue record of the suit land, at a given point of time, there was no legal heir of Jadiben shown, who died without any legal heirs in the year 1982.
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NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined 4.5. It is further stated that apart from the suit land situated at Survey No.813, there is another adjacent Survey No.886 having been purchased by them, and because of the implementation of Town Planning Scheme in the year 1999, Final Plot No. 19 was given for such parcel of land, which is suppressed by the plaintiff in the suit. 4.6. It appears that during the pendency of the suit, which was filed in the year 2005, on the 12th November 2008, the impugned application came to be filed by the plaintiff below Exhibit 106 under Order 26 Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as the 'CPC'), thereby requesting the Trial Court to appoint a Court Commissioner for preparing panchnama and map to bring on record the position of the land in question and the construction is carried out on such parcel of land, which, according to the plaintiff, would elucidate for the Court to resolve the controversy involved in the suit.
4.7. The Trial Court, after hearing the parties, vide its order dated 4th December, 2009, allowed the impugned Page 4 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined application, which is challenged by defendant Nos.5 and 6 by filing the present application.
4.8. This Court, vide its order dated 20th December 2010, initially issued notice and granted stay in terms of para 26(C) of the present application and, later on, admitted the matter by issuing Rule on 1st April, 2011, and the interim relief granted earlier was confirmed.
5. SUBMISSIONS OF THE PETITIONERS-DEFENDANT NOS. 5 AND 6 5.1. Learned Senior Advocate, Mr. Anshin Desai, with learned advocate Ms.Venu Nanavati would submit that the impugned application, having been filed after almost three years from the filing of the suit, is ex facie contrary to the provisions of Order 26, Rule 9 of the CPC. 5.2. Learned Senior Advocate, Mr.Desai would further submit that for the first time, the plaintiff came out with a plea that on getting information about the implementation of the Town Planning Scheme in the area where the suit land is Page 5 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined situated, and after gathering information under the RTI Act, she came to know that Final Plot No. 19 + Final Plot No. 52 were given for the respective parcels of land, which was not within her knowledge; this is not correct, as the implementation of the Town Planning Scheme and the final plot number was earmarked in relation to the suit property much prior to the filing of the suit.
5.3. Learned Senior Advocate, Mr. Desai, would further submit that the plain reading of the impugned application, which was objected to by the petitioners, who filed their detailed reply, would show that just to collect the evidence on record, such an application was filed, which is not permissible in law.
5.4. Learned Senior Advocate, Mr. Desai, would further submit that no cogent and valid reasons are assigned by the Trial Court while allowing the impugned application and, as such, the impugned order suffers from irregularity, inasmuch as no reasons are assigned for granting it. Page 6 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025
NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined 5.5. To buttress his argument, learned Senior Advocate would rely upon the following decisions:-
(I) Kishorekumar And Another versus Rejeshkumar Jayprakash Agarwal Reported In AIR 1992 (GUJ) 95 (II) Shanti Life Space Pvt. LTD. Through Authorised Person Nitin Chunibhai Gajera Vs. Umang Satishbhai Chokhawala Reported In 2020 (4) GLR 2594 5.6. Making the above submissions, learned Senior Advocate Mr. Desai, would request this Court to allow the present application.
6. No other and further submissions are made.
7. POINT FOR DETERMINATION 7.1. The short question that falls for consideration of this Court is whether, in the facts and circumstances of the case, the Trial Court has committed any gross error of law and/or a jurisdictional error by granting the impugned application filed under Order 26, Rule 9 of the CPC, thereby appointed the Court Commissioner to carry out panchnama and map?
8. ANALYSIS
9. At the outset, the facts which are noted hereinabove are not in dispute. The suit is filed seeking declaration and Page 7 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined injunction in relation to the suit property, whereby the plaintiff is claiming declaration that the plaintiff be declared as the owner of the suit land and that the sale deeds which were executed in favour of the defendants be declared null and void, and has so also asked for an injunction. Such suit was filed in the year 2005. The impugned application came to be filed after about three years of the filing of the suit, declaring the fact that the plaintiff was not aware of the Town Planning Scheme and the final plot number given by the authority in relation to the suit land.
10. Nonetheless, in para 6 of the impugned application, the plaintiff averred that as the defendants are proceeding with the construction on Final Plot No. 52, and to bring on record the position of the suit land as well as the construction being carried out over the suit property, such impugned application was filed.
11. The plain reading of the impugned application would indicate that the plaintiff wants to collect evidence at the Page 8 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined instance of appointment of Court Commissioner, which is not permissible in law.
12. It is a now well-settled legal position that the appointment of Court Commissioner for the collection of evidence at the instance of any party to the suit is not permissible, and that would not be the object of exercising power by the Trial Court under Order 26, Rule 9 of the CPC.
13. The judgments which are cited by learned Senior Advocate, Mr. Anshin Desai, in the case of Kishor Kumar (Supra) and Shanti Life Space Pvt. Ltd. (supra), have clearly laid down such law, and the same would be binding to this Court. This Court would not have any different opinion than the opinion expressed in those judgments.
14. Be that as it may, if I analyze the prayers made in the suit, nowhere it has been mentioned by the plaintiff that there is a boundary dispute, and as such, the suit is filed seeking a declaration about the title of the suit land, for which there is Page 9 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025 NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined no necessity for the plaintiff to seek any appointment of Court Commissioner.
15. I also accept the submissions made by Learned Senior Advocate, Mr. Desai, that while allowing the impugned application, the Trial Court has not assigned any cogent and valid reasons. As such, there is no reason assigned by the Trial Court while granting the impugned application, except that what is stated in para 6 of the impugned application is worded in a different language by the Trial Court while allowing the impugned application.
16. Considering the matter from all angles would lead to only one conclusion: that the impugned application is bereft of any particulars and lacks merit and could not have been entertained by the Trial Court while exercising its power under Order 26, Rule 9 of the CPC.
17. CONCLUSION 17.1. The upshot of the aforesaid discussion and reasons, the present application requires to be allowed and is hereby allowed.
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NEUTRAL CITATION C/SCA/15883/2010 JUDGMENT DATED: 02/07/2025 undefined 17.2. The order dated 4th December, 2009, passed by the 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, below Exhibit 106 in Special Civil Suit No.206 of 2005, is hereby quashed and set aside. Consequently, the impugned application filed below Exhibit 106 in Special Civil Suit No. 206 of 2005 is hereby rejected. Rule is made absolute. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 11 of 11 Uploaded by MOHD MONIS(HC01900) on Wed Jul 02 2025 Downloaded on : Thu Jul 03 02:55:44 IST 2025