Pagi Dhirubhai Ramsangbhai vs Mali Rasikbhai Dahyabhai
2023 Latest Caselaw 2850 Guj

     C/SCA/13536/2022                                                 ORDER DATED: 11/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13536 of 2022

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                        PAGI DHIRUBHAI RAMSANGBHAI
                                   Versus
                         MALI RASIKBHAI DAHYABHAI
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Appearance:
HARSH K RAVAL(9068) for the Petitioner(s) No. 1,2,3,4,5,6
NIMIT Y SHUKLA(8338) for the Respondent(s) No. 1,2,3,4,5,6,7
ROHANKUMAR H RAVAL(8337) for the Respondent(s) No. 1,2,3,4,5,6,7
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 11/04/2023
                                ORAL ORDER

1. The present petition is filed by challenging the

impugned order dated 13.10.2021 passed below Exh.9

application in Civil Misc. Appeal No.2 of 2020 preferred

under Order XXVI Rule 9 of the Code of Civil rd Procedure, 1908, by the learned 3 Additional District

Judge, Limbdi, whereby, the same, for appointment of

Court Commissioner, is rejected. Hence, the present

petition is preferred by the present petitioners.

2. Heard learned advocate Mr. Harsh K. Raval for the

petitioners, learned advocate Mr. Rohankumar H. Raval

with learned advocate Mr. Nimit Y. Shukla for the

C/SCA/13536/2022 ORDER DATED: 11/04/2023

respondent Nos.1 to 7.

3.1 Brief facts of the case are as such that the

petitioners who are original defendants and respondents

herein are original plaintiffs in Regular Civil Suit No.121

of 2018 before learned Principal Civil Judge, Limbdi,

which is filed for seeking permanent injunction against

the construction over the alleged pathway despite the

plaintiffs having three separate ways for the purpose of

ingress egress from their property. The learned Trial

Court by order dated 06.02.2022 allowed Exh.5

application of the plaintiffs and directed the defendants

i.e. petitioners herein not to construct over the alleged

pathway and not to obstruct the plaintiffs from ingress egress from the said alleged pathway.

3.2 Thereafter, the petitioners - defendants have filed

Civil Misc. Appeal No.2 of 2020 before the learned Addl.

District Court, Limbdi.

3.3 It also transpires from the record that during the

pendency of that appeal, the plaintiffs in the main suit

applied for appointment of Court Commissioner on

C/SCA/13536/2022 ORDER DATED: 11/04/2023

30.11.2018 for the local investigation and the same was

allowed by the Court vide order dated 04.12.2018 and

one Court Commissioner - Mr. P.H. Chavda,

Superintendent of Addl. Civil Court, Limbdi was

appointed as Court Commissioner. Thereafter, the

defendants have also made an application for

appointment of Court Commissioner vide Exh.22 and has

prayed for Court Commission, which was carried out by

the same person namely Mr. P.H. Chavda, and therefore,

the petitioners herein are not satisfied as the Court

Commissioner has no proper knowledge to carry out the

Court Commission, and the petitioners herein have also

applied for the Court Commission below Exh.9

application in the appeal i.e. Civil Misc. Appeal No.2 of 2020, wherein he has also filed application for

appointment of Court Commissioner vide Exh.9

application by seeking that the fresh Court Commission

shall be carried out by directing any officer of the

D.I.L.R. Thereafter, that application below Exh.9 is

rejected by impugned order dated 13.10.2021 and

therefore, the present petition is preferred by the present

petitioners under Article 227 of the Constitution of India.

3.4 Learned advocate Mr. Harsh K. Raval for the

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petitioners has relied upon the earlier two Court

Commissions and has submitted that earlier two Court

Commissions are carried out by the same person who is

member of the staff and has no technical knowledge, and

therefore, he has preferred an application before the

learned Trial Court where his appeal is pending to carry

out the Court Commission through the person who is

having technical knowledge; such as officer of the District

Inspector of Land Record (D.I.L.R.) and that application

is erroneously rejected, and therefore, he has prayed that

this petition is required to be considered.

3.5 He has submitted that no prejudice will cause if

the Court Commissioner is appointed and the Court Commissioner can be appointed at the stage of appeal

also, and for that, there is no bar. He has further

submitted that the appointment of non-technical persons

as Court Commissioner may create problem to decide the

real controversy in the issue as he may not aware about

the technical specification.

3.6 He has heavily relied on the judgment of Madras

High Court in the case of Chokkalingapuram Thevangar

C/SCA/13536/2022 ORDER DATED: 11/04/2023

Vardhaga Sangam Versus Chokkanathaswami Temple

reported in 1995 (II) CTC 553 and has submitted that in

that decision, the advocate was appointed as Court

Commissioner for second time.

3.7 He has further submitted that considering the

provisions of Order XXVI Rule 9 of the C.P.C. and

considering the impugned order, the Court has erred in

rejecting the application filed below Exh.9 in the appeal

and the ground for rejection is not in accordance with

law. The Court can certainly appoint the Court

Commissioner to decide the real controversy between the

parties, and therefore, he prays to allow this petition by

exercising the powers under Article 227 of the Constitution of India.

4.1 Per contra, learned advocate Mr. Nimit Y. Shukla for the respondent Nos.1 to 7 has submitted that the

Court should not entertain the petition as the learned

Appellate Court below has passed the discretionary order

after considering the fact that the earlier also twice the

Court Commissioner has carried out Panchnama by

virtue of Order XXVI Rule 9 of the C.P.C. in the suit

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proceeding and moreover, dispute the fact that the

subject matter of suit is regarding right of ingress egress

from the said alleged pathway and there is sufficient

material available on the record by which the dispute

can be adjudicated by the Courts below, and therefore,

no need to interfere in the findings of the learned

Appellate Court below by which the Appellate Court

below has used the discretion vested in the Appellate

Court below while deciding application under Order XXVI

Rule 9 of the C.P.C. after considering the materials

available on the record, more particularly, two

Panchnamas drawn during the suit proceeding and also

considering the real controversy between the parties for

the plaint and also considering the material available by way of Panchnama drawn by the Court Commissioner,

and therefore, he has prayed that in view of provisions

of Order XXVI Rule 9 of the C.P.C., such applications

cannot be permitted to be filed repeatedly on flimsy and

erroneous ground and it is nothing but an attempt to

abuse process of law.

4.2 He has heavily relied upon the judgment of Co-

ordinate Bench of this Court in the case Kagdiben and

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Others Versus Budhaliben and Others reported in Special

Civil Application No.5580 of 2019 dated 25.03.2029, and

more particularly, para 7 is relevant and has submitted

that present petition deserves to be dismissed as the

Trial Court has neither erred in jurisdiction nor

committed any error in exercising its discretion by

rejecting the application for appointment of Court

Commissioner.

5.1 I have considered the rival submissions. I have also

considered the fact that the Court Commissioner has

carried out the Panchnama of the disputed property on

two previous occasions. It is also relevant to note that

the petitioners have never raised any objection about the appointment of Court Commissioner, Mr. P.H. Chavda,

who is the Superintendent of Addl. Civil Court, Limbdi ,

nor have they raised any objection about his technical

knowledge. It is relevant to note that the application

below Exh.5 has also been decided in favour of the

present respondents.

5.2 It is relevant consider the provisions of Order XXVI

Rule 9 of the Code of Civil Procedure, 1908, which is as

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under:

"Order XXVI Rule 9 of the Code of Civil Procedure,

1908:-

"9. Commissions to make local investigations.--In any

suit in which 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: Provided that, where the State Government has

made rules as to the persons to whom such commission

shall be issued, the Court shall be bound by such

rules."

5.3 Considering the fact that the proceedings of the

Court cannot be misused by making repeated applications

without any change in circumstances of the disputed

land in question and once the Court Commissioner has

drawn the Panchnama, there is no need to repeatedly

carry out such exercise, which amounts to wasting the

precious time of the Trial Court or the Appellate Court

below.

C/SCA/13536/2022 ORDER DATED: 11/04/2023

5.4 At this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment

Craft V/s Prakash Chand Goel reported in (2022) 4 SCC

181, whereby the Apex Court has said that supervisory

jurisdiction of High Court when to be exercised, more

particularly, paragraph 15 to 17 which read as under:

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like

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when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not

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interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the

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appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

5.5 This Court has limited jurisdiction to interfere with

the discretionary power used by the learned Trial Court

and more particularly, the learned Appellate Court below

has not committed any illegality or infirmity. Hence, the

present petition deserves to be dismissed.

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6. In view of the aforesaid, the present petition is

dismissed.

Notice, if any, stands discharged.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA