Dinesh Durgashankar Pathak vs Pravinchandra Pranlal
2021 Latest Caselaw 18293 Guj

      C/SCA/4463/2015                           ORDER DATED: 10/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4463 of 2015

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                DINESH DURGASHANKAR PATHAK & 1 other(s)
                               Versus
                   PRAVINCHANDRA PRANLAL & 4 other(s)
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Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,2
MR DEVANG R BHATT FOR MR HS MUNSHAW(495) for the Respondent(s)
Nos. 4 & 5
NOTICE SERVED(4) for the Respondent(s) No. 4
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 10/12/2021

                             ORAL ORDER

1. By preferring this petition, petitioners have challenged

the order passed below Exh.60 in Regular Civil Suit No.289 of

2011 dated 04.02.2015 by learned 7 th Additional Senior Civil

Judge, Jamnagar.

2. Short facts of present case may be summarized as

under:

2.1 As per the contents of the petition, petitioners and

respondent nos.1 to 3 are neighbours and respondent nos.1 to

3 are owners of land bearing Survey No.186, Sheet No.8, Soni

Fali, Opp. Satyanarayan Temple, Jamnagar. Petitioners are

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the owners and residing at premises, which is on the southern

side and adjacent to the land owned by respondent nos.1 to 3.

As per the case of the respondent nos.1 to 3, without

obtaining any permission, petitioners started unauthorized

constructions on their premises and causing damage. As per

their contentions, petitioners illegally encroached upon the

common compound. They approached respondent no.4 -

Municipal Corporation on 26.07.2011. However, no action was

taken against the petitioners, and therefore, they have filed

Regular Civil Suit No.289 of 2011 on 12.09.2011 before

learned 7th Additional Senior Civil Judge, Jamnagar for

declaration, mandatory and permanent injunction against the

petitioners and respondent nos.4 and 5 herein. Along with the

suit, an application below Exh.8 for appointment of Court

Commissioner for carrying out panchnama and sketch of the

disputed premises was preferred by respondent nos.1 to 3 i.e.

original plaintiffs which was granted and panchnama was

carried out as well as sketch/map of the disputed premises

after issuing notice to the petitioners. That the petitioners filed

their detailed reply vide Exh.31 to the plaint and interim

injunction application raising several contentions, including

the contention that there was no unauthorized construction or

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encroachment made by the present petitioners. They also

produced a copy of sanad as well as photographs of the

premises owned by them vide list Exh.34. The Trial Court

framed the issues below Exh.50 on 26.08.2014. After a period

of three years from filing of the suit, preparation of the

panchnama and rough sketch/map by the Court

Commissioner, at a stage of evidence of the plaintiffs,

respondent nos.1 to 3 again preferred another application

below Exh.60 on 05.11.2014 on the basis of same facts

seeking appointment of City Survey or Circle Officer as Court

Commissioner to make local investigation, to carry out

panchnama, prepare sketch and to make report before the

Trial Court. Again, written objections were filed by the present

petitioners below Exh.61 on 26.11.2014 against the

application below Exh.60 contending that attempt on the part

of the respondent nos.1 to 3 was to create and collect evidence

which was impermissible as against the scope and object of

provisions of Order 26 Rule 9 of the Code of Civil Procedure,

1908 (hereinafter referred to as "the CPC" for short). It was

also pointed out that sanad of the premises owned by the

petitioners and respondent nos.1 to 3 contains rough sketch

and measurement of the disputed premises was placed on

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record and it was open for the parties to the suit to call for

production of Government records and examination of

Government officers as witnesses. The learned Trial Court vide

order dated 04.02.2015 allowed the application below Exh.60

preferred by original plaintiffs. Upon request being made by

the petitioners below Exh.66, the Trial Court was pleased to

stay the implementation and execution of the order passed

below Exh.60 till 23.03.2015 vide order dated 20.02.2015 so

as to enable the petitioners to challenge the same before this

Court. Hence, this petition.

3. Heard learned advocate for the petitioners and learned

advocate for respondent nos.4 and 5. Mr.Devang R. Bhatt,

learned advocate is requested to appear on behalf of

respondent no.4 and shall take necessary instructions from

respondent no.4. Cause-list shows that respondent nos.1, 2

and 3 are expired.

4. Learned advocate for the petitioners has submitted that

findings of the Trial Court while passing the order passed

below Exh.60 are erroneous and misconception of law and

facts. It is further submitted that Trial Court failed to consider

the fact that for creating or collecting new evidence in respect

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of the subject premises, application of the plaintiffs cannot be

entertained and can be permitted to file after a period of more

than three years at the stage of evidence on the same facts for

which earlier panchnama and map were prepared by the duly

appointed Court Commissioner. It is further submitted that in

the present case, sanad of premises owned by the petitioners

and respondent nos.1 to 3 which contains rough sketch and

measurement of the disputed premises were already on record

and it was open for the parties to call for production of

relevant Government records and examination of Government

officers as witnesses. It is further submitted that it was an

attempt on the part of the plaintiffs to create and collect

evidence which was impermissible under Order 26 Rule 9 of

the CPC and contrary to the settled legal principles enunciated

by the Hon'ble Apex Court as well as by this Court. It is

further submitted that the application Exh.60 was filed by the

plaintiffs with a view to collect evidence through Court and not

to bring correct facts before the Trial Court for the purpose of

enabling the Trial Court to determine the real question in

dispute between the parties. In support of his arguments,

learned advocate for the petitioners has relied upon the

judgment of this Court in Lilaben Mangubhai Nayak and

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another Vs. Ramrati Murlidhar Trpathi (Special Civil

Application 17998 of 2014, decided on 18.12.2014).

Hence, as per the submissions made by learned advocate for

the petitioners that impugned order passed below Exh.60 is

erroneous and contrary to the settled principles of law, he has

requested to quash and set aside the impugned order by

allowing this petition.

5. From the other side, learned advocate for respondent

nos.4 and 5 has supported the findings arrived at by the Trial

Court below the order Exh.60 and submitted that there was

no bar for the Civil Court to pass the order for appointment of

the Court Commissioner twice. It is further submitted that

encroachment in the disputed land was made by the present

petitioners, and therefore, to determine the real issue pending

between the parties, it was necessary to place on record the

correct facts and therefore, order of the Trial Court passed

below Exh.60 cannot be said to be illegal and erroneous. It is

further submitted that the previous panchnama and sketch/

map prepared by the Court Commissioner does not create the

real situation of the disputed property, and therefore, it was

necessary on the part of the Court to determine the real issue

pending between the parties. It is further submitted that there

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was no question of create any evidence. Learned advocate

appearing for the respondents has supported the findings

arrived at by the Trial Court and has requested to dismiss this

petition.

6. Having heard learned advocates for the respective parties

and perused the material on record, it appears that Regular

Civil Suit No.289 of 2011 was preferred by the respondent

nos.1 to 3 - original plaintiffs against the petitioners and

respondent nos.4 and 5 for declaration and permanent

injunction before the learned Principal Senior Civil Judge,

Jamnagar on 07.09.2011. Along with the suit, plaintiffs

preferred one application for preparing the panchnama

and appointment of the Court Commissioner vide Exh.8

alleging that the defendant had destroyed the wall on the

upper floor in the premises of the plaintiffs. It is further

alleged that the encroachment was made by the defendant in

a Ravli Fali and construction was made as well as on the first

floor and second floor. There was demolition of the waterline,

sewerage line, and electric connection by the defendant and

therefore, he requested to appoint the Court Commissioner by

the Court. The Trial Court, at the relevant point of time, was

pleased to allow the application by appointing the Court

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Commissioner directing to prepare panchnama of the disputed

land. It appears that the Court Commissioner prepared the

panchnama as well as the map, as directed by the Court. It

appears from the record that on 05.11.2014, second

application was made by the plaintiffs before the Trial Court

stating that in a common fali, encroachment was made by the

defendant and prevalent situation of the disputed property

was required to be placed on record, and therefore, officer of

the City Survey or Circle Officer may be appointed as Court

Commissioner. It was further requested that against the front

portion of the defendant, panchnama was required to be

carried out by the Court Commissioner. The said application

was objected by the present petitioners by filing their reply

vide Exh.61 contending that photographs were produced by

the plaintiffs vide Mark 30/1 and 30/12 and present suit was

filed on 09.09.2011. There was no justification shown by the

plaintiffs in respect of delay in filing the application. It is

further contended that the Court Commissioner has already

prepared the panchana and submitted a report vide Exh.19

along with rough sketch and therefore, there was no question

to prepare panchnama second time. The Trial Court, after

hearing the parties, was pleased to allow the application vide

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order dated 04.02.2015. Previous panchnama prepared by the

Court Commissioner was at Exh.19 and there was no clear

situation of the disputed property at the relevant point of time.

Prayer made by the original plaintiffs in their application

Exh.8 and subsequent prayer in their application Exh.60 was

quite different. Under Order 26 Rule 9 of the CPC, if 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. There is no bar to appoint a Court Commissioner

twice. Satisfaction of the Court is the only criteria for granting

or disallowing the prayer made by the private parties for

appointment of the Court Commissioner.

7. Considering the peculiar facts of the case, second

application Exh.60 preferred by the plaintiffs was rightly

granted by the Court-below. According to this Court, there

was no error in allowing the application preferred by the

plaintiffs at Exh.60 appointing Court Commissioner. In a case

of Special Civil Application No.17998 of 2014, the Court

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Commissioner appointed by the Court-below on a second

occasion was held illegal by this Court. Facts of each case

would require to be considered by the Court while deciding

such an issue. Facts in the cited case was quite different than

the facts of the present case and therefore, the judgment relied

upon by learned advocate for the petitioners would not be

helpful to the petitioners.

8. In view of the aforesaid observations, present petition

deserves to be dismissed and accordingly the same is

dismissed. Notice is discharged.

(B.N. KARIA, J) rakesh/