Naineshbhai Rambhai Patel vs Tarunkumar Dineshchandra Patel
2021 Latest Caselaw 16622 Guj

     C/SCA/16132/2021                           ORDER DATED: 22/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16132 of 2021

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                      NAINESHBHAI RAMBHAI PATEL
                                Versus
                   TARUNKUMAR DINESHCHANDRA PATEL
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Appearance:
MS. ARCHANA ACHARYA FOR MR PARTHIV B SHAH(2678) for the
Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 22/10/2021

                             ORAL ORDER

1. By way of present petition, petitioners, who are the original

defendant Nos.2, 4 and 5 before the trial court, have challenged the

order dated 21.10.2021 passed by learned Principal Senior Civil

Judge, Ahmedabad (Rural) below application Exh.7 in Special Civil

Suit No.67 of 2020.

2. Heard learned advocate Ms. Archana Acharya for the

petitioners.

3. It is submitted by learned advocate for the petitioners that

impugned order passed by the learned Trial Court is completely

contrary to the facts, evidence and circumstances as well as settled

position of law. That Order 26 Rule 9 of Code of Civil Procedure

C/SCA/16132/2021 ORDER DATED: 22/10/2021

can not be allowed for creating any evidence. That suit was filed in

the year-2020 and application Exh.5 for interim injunction was also

preferred by the plaintiff in the suit, which was not decided yet or

not persuaded by the plaintiff. That after passing of one year,

straightway an application Ex.7 was given by the

respondent/plaintiff. Referring the copy of the plaint of Special Civil

Suit No.67 of 2020, particularly paragraph Nos.3, 6 and 7, it is

submitted that as per the averments made in the plaint by the

plaintiff, they are in actual position of the suit property, and

however, in the application Exh.7 submitted by the plaintiff, it was

submitted that if the actual possession of the suit land would be

placed on record, correct situation would be found by the Court, and

therefore, appointment of the Court Commissioner as well as

preparing the panchnama were necessary. It is further submitted that

present petitioners have purchased the land by registered sale deed

and they are lawful owners of the suit property. That Court

Commissioner has issued notice on 21.10.2021 and date is fixed for

preparing the panchnama on 23.10.2021 at 15.00 p.m. In support of

her arguments, learned advocate for the petitioners has relied upon a

judgment reported in 2010 JX (Guj) 778.

C/SCA/16132/2021 ORDER DATED: 22/10/2021

4. Issue requires consideration.

5. Notice returnable on 29.10.2021.

6. The impugned order dated 21.10.2021 passed below Exh.7 in

Special Civil Suit No.67 of 2020 by learned Principal Senior Civil

Judge, Ahmedabad shall be suspended till the returnable date.

7. Copy of the order shall be supplied to learned advocate for the

petitioners.

Direct service is permitted.

(B.N. KARIA, J) SUYASH