Gujarat High Court
Jyotsanaben R Patel vs State Of Gujarat on 16 January, 2024
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C/SCA/9011/2023 JUDGMENT DATED: 16/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9011 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 9011 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JYOTSANABEN R PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR PRIT U SHAH(11054) for the Petitioner(s) No. 1
MS NIDHI M SHETH(11043) for the Petitioner(s) No. 1
MR ADITYA DAVDA, AGP for the Respondent(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/01/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Aditya Davda,
learned Assistant Government Pleader waives
service of notice of Rule for respondent Nos.1 to
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4. The board reflects that learned advocate Mr.
Deepak Sanchela appears for and on behalf of
respondent No.5, but he remained absent.
2. With the consent of the learned advocates for the
respective parties, the petition is taken up for
final hearing today.
3. Heard learned advocate Mr. Prit U. Shah for the
petitioner and learned Assistant Government
Pleader Mr. Aditya Davda for the respondents.
Perused the record.
4. By way of this petition, under Articles 226 and
227 of the Constitution of India, the petitioner has
prayed for the following reliefs:
"14(A) Your Lordships may be pleased
to issue a writ of certiorari or a writ in
the nature of certiorari or any other
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appropriate writ, order or direction
quashing and setting aside the
impugned order dated 27.3.2023
passed by learned Principal Senior
Civil Judge, Vyara below application
Exh.7 moved by the petitioner in
Special Civil Suit No.1 of 2020 and
further be pleased to allow the
aforesaid application below Exh.7 and
direct carrying out process of
appointment of Court Commissioner
by appointment of competent officer /
person in time bound manner (at
Annexure D hereto)
(B) During the pendency and till
the final disposal of the present
petition, Your Lordships may be
pleased to stay the further
proceedings of Special Civil Suit No.1
of 2020 pending before the Principal
Senior Civil Judge, Vyara (at
Annexture A and B hereto).
(C) During the pendency and final
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disposal of the present petition, Your
Lordships may be pleased to grant
stay / order status quo position of
subject property as is forming part of
Special Civil Suit No.1 of 2020
pending before the Principal Senior
Civil Judge, Vyara and even
undertaken by defendants vide
undertaking recorded in Annexure I
Colly hereto);
(D) 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 and direct
Hon'ble Principal Senior Civil Judge,
Vyara to decide and dispose off
Application seeking interim injunction
Exh.5 (Annexure B) hereto in time
bound manner on or after disposal of
present petition."
5. Learned advocate for the petitioner has
submitted that the petitioner - original plaintiff
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has filed a Special Civil Suit No.1 of 2020 before
the learned Senior Civil Judge at Vyara, Tapi for
the reliefs, more particularly, relief to secure
possession, relief of adverse possession and
permanent injunction. An application Exh.7 was
filed by the present petitioner under Order 26
Rule 9 of the Code of Civil Procedure, 1908 (for
short, hereinafter referred to as `the Code') for
appointment of Court Commissioner. It is mainly
submitted that the purpose of having a Court
Commissioner is to ascertain the correct number
of the disputed property and more particularly for
the reasons mentioned in the application.
6. On 27.3.2023, the learned Principal Senior Civil
Judge, Vyara rejected the application. It is
submitted that on the application Exh.7, learned
advocate for the defendants have made an
endorsement `no objection.' Thus, when the
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defendants have no objection in having the Court
Commissioner, the learned trial Court could not
have dismissed the application for an
appointment of the Court Commissioner.
7. It is further submitted that the purpose of having
the Court Commissioner was to strengthen all the
contentions raised in the injunction application
and the documents filed in support thereof.
Another purpose of having Court Commissioner is
reflected in paragraph No.5 of the application.
8. Learned advocate for the petitioner has further
submitted that Order 39 Rule 7 of the Code
prescribes the provision that on an application of
any party, the Court may make an order to
inspect the suit property. Order 39 - Rule 7 is
reproduced hereunder:
"7. Detention, preservation,
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inspection, etc., of subject-matter of
suit.--
(1) The Court may, on the
application of any party to a suit,
and on such terms as it thinks fit,--
(a) make an order for the
detention, preservation or
inspection of any property
which is the subject-matter of
such suit, or as to which any
question may arise therein;
(b) for all or any of the
purposes aforesaid authorize
any person to enter upon or
into any land or building in the
possession of any other party
to such suit; and
(c) for all or any of the
purposes aforesaid authorize
any samples to be taken, or
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any observation to be made or
experiment to be tried, which
may seem necessary or
expendient for the purpose of
obtaining full information or
evidence.
(2) The provisions as to execution of
process shall apply, mutatis mutandis,
to persons authorized to enter under
this rule."
9. Learned Assistant Government Pleader appearing
for respondent Nos.1 to 4 has vehemently
objected and has relied upon the affidavit-in-reply
and has contended that the land belonged to the
ownership of the Government and it was a
Gauchar land initially and for one year, the land
was given to the plaintiff for having a temporary
shed over the suit property.
10. It is the say of the learned AGP for the State that
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on perusal of the contentions raised in the
Written Statement also, the dispute is raised with
regard to the so called possession of the plaintiff.
It is the say of the original respondent that the
possession of the plaintiff qua suit property is
illegal and for removal of illegal construction over
the suit property, the notices were issued to the
plaintiff and other encroachers.
11. Thus, it is submitted that the purpose of having a
Court Commissioner is nothing but an attempt to
gather evidence with regard to the possession
aspect.
12. Considered the submission of learned advocates
for the respective parties.
13. For the limited purpose, Order 26 - Rule 9 of the
Code is reproduced hereunder:
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"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."
14. Thus, the purpose of having a Court
Commissioner is to have the legal investigation
for the purpose of elucidating any matter in
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dispute, or of ascertaining the market-value of
any property, or the amount of any mesne profits
or damages or annual net profits. None of the
ingredients are found in the application Exh.7
filed by the plaintiff / petitioner.
15. Admittedly, the suit is claiming reliefs regarding
possession and there is serious dispute with
regard to the nature of possession retained by
the petitioner - plaintiff.
16. Even if the original defendants have endorsed `no
objection' in granting the application, the
ultimate discretion vests with the Court whether
to grant or reject the application. Thus, having no
objection in granting the application has no
importance.
17. In the present case, even if there is no dispute for
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the original defendants regarding appointment of
a Court Commissioner. The Court has power to
ignore such endorsement and can decide the
application strictly in accordance with law.
18. In the case on hand, looking to the averments
made in the application, an attempt is made to
create an image that for the benefit of the
hearing of the injunction application, the
appointment of Court Commissioner is required.
In the present set of facts, the report of the Court
Commissioner is not the legal requirement.
19. The purpose of application for injunction cannot
be achieved by appointment of Court
Commissioner.
20. The conduct of the plaintiff is nothing but to
create and collect evidence of possession which
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is not permissible and which is also outside the
scope of order 26, Rule 9 of the Code.
21. It is absolutely a hollow submission that even
under the provisions of Order 39 Rule 7 of the
Code, the application Exh.7 could have been
granted and the learned trial Court had
jurisdiction to exercise the powers vested under
Order 39 Rule 7 of the Code.
22. The provisions of Order 39 Rule 7 of the Code is
absolutely different and it has no connection with
the provisions of Order 26 Rule 9 of the Code. The
suit is not under the provisions of Order 39 Rule 7
of the Code.
23. The petitioner has tried to invoke two different
provisions which are set out in the Code for
different purposes when the suit itself is not for
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detention or inspection as contemplated under
Order 39 Rule 7 of the Code. The application
Exh.7 is not maintainable under the provisions of
Order 39 Rule 7 of the Code. The learned trial
Court has observed that no fruitful purpose would
be served by appointing the Court Commissioner
of the disputed property. There is no reason to
interfere with in such finding as the purpose of
having Court Commissioner is to gather and
collect evidence. The Court cannot be an
instrument in collecting evidence for the parties.
24. With the above observations, the present petition
lacks merit and the deserves to be dismissed and
accordingly, it stands dismissed with no order as
to costs. Rule is discharged.
25. In view of dismissal of the main matter, connected
Civil Application will no longer survive and the same
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stands disposed of accordingly.
Sd/-
(D. M. DESAI,J)
VATSAL
