Muman Nizamuddin Abdulbhai ... vs Yasin Abdulrahim Sura
2021 Latest Caselaw 4307 Guj

         C/SCA/4889/2021                                         ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 4889 of 2021
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            MUMAN NIZAMUDDIN ABDULBHAI (RAHIM)
                            Versus
                  YASIN ABDULRAHIM SURA
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Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 17/03/2021
                                  ORAL ORDER

1. Heard learned advocate Mr. Nishit P. Gandhi for the petitioner through video conference.

2. By way of the present petition, petitioner has prayed for the following reliefs:

(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 directions quashing and setting aside the impugned order dated 20.02.2021 passed by the learned Principal Civil Judge, Vadgam below Exh.06 in Regular Civil Suit No.06 of 2021; (B) During the pendency and final disposal of the present petition Your Lordships may be pleased to stay the impugned order dated 20.02.2021 passed by the learned Principal Civil Judge, Vadgam below Exh.06 in Regular Civil Suit No.06 of 2021;

(C) Pass any such other and / or further orders that may be thought just and proper, in the facts and circumstances of the present case;

3. Learned advocate Mr. Nishit Gandhi draws attention of this Court to the prayer made in the

C/SCA/4889/2021 ORDER

plaint/suit being Regular Civil Suit No. 6 of 2021 filed before the Court of learned Principal Civil Judge, Vadgam and submits that the Suit is preferred by the original plaintiff, who is respondent no.1 herein and by way of the suit, the plaintiff is seeking cancellation of the sale deed and for permanent injunction. According to the learned advocate Mr. Gandhi, in the plaint, the four corners of the suit land is very clearly mentioned by the plaintiff and more particularly in para­7, four corners of the land are specifically stated. Learned advocate Mr. Gandhi further draws attention of the Court to the prayers made in the suit, which is at page no. 27 in the petition and in para­16 of the plaint. Learned advocate Mr. Gandhi points out from the prayer that looking to the prayer, there is no dispute about the boundaries of the suit land and therefore, any application praying for appointment of the Court Commissioner is absolutely misconceived, in view of the nature of relief prayed for in the suit. Learned advocate Mr. Gandhi further submits that the Court below has passed an order below Exh.6 dated 20.02.2021, whereby, the Court Commissioner was appointed and by way of the order under challenged, the learned Principal Civil Judge, Vadgam directed that the notice be issued to the respective parties and in presence of neutral panchas, the Court Commission

C/SCA/4889/2021 ORDER

may take place and after preparing the panch­ rojkam and map, the same was directed to be produced before the Court on 15.03.2021. Learned advocate Mr. Gandhi further draws attention of the Court to the averments made in the petition that the aforesaid notice was served upon the petitioner on 02.03.2021. After drawing the attention of the Court to the aforesaid averment made at page No.7 of the petition, learned advocate Mr. Gandhi states at bar that after the notice served upon the petitioner, the petition was affirmed on 04.03.2021 and filed in a sealed cover before the Registry of this Court on 05.03.2021. However, due to the COVID­19 protocol, the petition could be circulated today only. Learned advocate Mr. Gandhi, under instructions, submits that on 15.03.2021 since all the defendants in the Suit could not be served, the Court Commission has not taken place. In view of the fact that the Court Commission has not taken place on 15.03.2021, the trial Court has adjourned the Suit to 15.04.2021 and now the Court Commission will take place on any date before 15.04.2021.

4. Learned advocate Mr. Gandhi draws attention of this Court to the various judgments of this Court which are annexed from page no. 79 to 88 to this petition and submits that the issue

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raised by way of the Suit by the plaintiff is in respect of the sale deed and the question of boundary is not there in the suit. The Court Commission is required only in case if the boundaries are disputed and the same should not be used to tilt the matter in favour of any party in respect of the possession and therefore, according to the learned advocate Mr. Gandhi, order appointing the Court Commission hurriedly without giving any opportunity of hearing to the present petitioners, to oppose the application for appointment of the Court Commissioner, such order ought not to have been passed by the learned Judge of the trial Court.

5. In view of the aforesaid submissions and in view of the various judgments of this Court pointed out by the learned advocate Mr. Gandhi, which formed the part of the petition, issue Notice to the respondent/s returnable on 09.04.2021.

6. In the meantime, by way of ad­interim relief in terms of Para­15(B) of the petition, till next date of hearing.

Direct service is permitted.

(NIRZAR S. DESAI,J) Pradhyuman