Gujarat High Court
Vikesh Chandrakant Patel vs Bimalkumar Chandrakant Patel on 1 July, 2025
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8561 of 2025
==========================================================
VIKESH CHANDRAKANT PATEL
Versus
BIMALKUMAR CHANDRAKANT PATEL & ORS.
==========================================================
Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/07/2025
ORAL ORDER
1. Heard learned advocate Mr.Jamshed Kavina for the
petitioner.
2. As far as possible, the parties will be referred to as per
their original position before the Trial Court.
3. THE SHORT FACTS OF THE CASE
3.1 The petitioner herein is original defendant no.2 of
Regular Civil Suit No.26 of 2007 filed by respondent no.1
herein, whereas respondent nos.2 and 3 are defendant nos.1
and 3 of the aforesaid suit respectively.
3.2 The suit came to be filed seeking declaration that
plaintiff is sole owner of suit property, which is occupied by
him. The Panchnama was carried out at the given point of
time in the year, 2007. The Trial Court initially granted
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
injunction in favour of plaintiff but later on, rejected
injunction, prima facie, observing that plaintiff and defendants
both are having common interest in the suit property, which
appears to have been purchased by their father/ husband
respectively.
3.3 After long time, a counter claim came to be filed by
defendant no.2 against plaintiff as well as defendant no.1
contending, inter alia, that during the pendency of suit, the
plaintiff has damaged the suit property by demolishing some
portion of wall covering the suit property and accordingly
asked for a declaration that plaintiff has no right to say the
suit property and not to interfere with the possession of
defendant no.2 by using any force. Such counter claim appears
to have been filed on 23rd March, 2021 and on very day, the
impugned application came to be filed by defendant no.2
below Exh. 146 under Order 26 Rule 9 of the Civil Procedure
Code, 1908 (hereinafter referred to as "CPC").
3.4 At the first instance, the Trial Court vide its order
dated 16th November, 2024 has rejected the impugned
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
application against which, defendant no.2 had preferred a writ
application being Special Civil Application No.2419 of 2025,
which was not pressed by defendant no.2 with a view to
approach the Trial Court as according to defendant no.2, he
was not heard by Trial Court be passing the aforesaid order.
4. It appears that on approaching again before the Trial
Court, the Trial Court though heard the matter at length but
ultimately rejected impugned vide its order dated 27 th March,
2025 against which, the present writ application is filed.
5. SUBMISSIONS OF THE PETITIONER
5.1 Learned advocate Mr.Kavina would submit that Trial
Court has not assigned any independent reasons than what has
been observed by it in first round of the matter, thereby,
committed serious error of law in adjudicating impugned
application.
5.2 Learned advocate Mr. Kavina would submit that there
is no embargo under the CPC that once an application filed
under Order 26 Rule 9 of the CPC, whereby a Court
Commissioner was appointed, again such an application at a
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
later point in time cannot be filed.
5.3 Learned advocate Mr. Kavina further submits that to
bring the truth on record and to elucidate the court to resolve
the main controversy germane in the counter claim, it was
necessary to appoint a Court Commissioner, for which the
impugned application was filed, which was required to be
allowed.
5.4 Learned advocate Mr. Kavina further submits that
when the suit property got damaged by the plaintiff, to bring
such a fact on record, it was incumbent upon the Trial Court
to appoint a court commissioner.
5.5 To buttress his argument, learned advocate Mr. Kavina
would rely upon decision of the Bombay High Court in the
case of Sanjiv K. Simepurskar vs. Dhaku Tukaram reported in
2022 SCC OnLine BOM 2230.
5.6 Making the above submission, learned advocate
Mr.Kavina would request this Court to allow the present writ
application.
6. No other and further submissions are made.
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
7. ANALYSIS
8. At the outset, it is required to be observed that the facts,
which are stated hereinabove, are not disputed. The Trial
Court has not granted any injunction in favour of the plaintiff,
whereby, neither the plaintiff nor the defendant was injuncted
to maintain the status quo of the suit property.
9. Prima facie, reading such order while refusing the
impugned order, it appears that the suit property belongs to
the father of the plaintiff and defendant no. 2 and the husband
of defendant no. 1, wherein they are claiming to have resided.
The counterclaim was filed in the year 2021 with the cause
that the plaintiff has damaged the suit property i.e., wall
covering the suit property.
10. The plain reading of the impugned application filed by
defendant no. 2 would indicate that to bring the action of the
plaintiff on record by way of court commissioner's report, such
application was filed which, according to this court, would
amount to the collection of evidence to prove the factum
stated by defendant no. 2 in his counterclaim, which is not
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
permissible in law.
11. By now, it is a well-settled legal position of law that the
appointment of court commissioner for the collection of
evidence at the instance of parties cannot be done unless the
Court feels that such would be required in the peculiar facts
and circumstances of the case, where any order of the Court is
breached and/or violated by any of the parties.
12. The judgment which has been cited by learned advocate
Mr. Kavina in support of his submission would not be helpful,
inasmuch as it is not applicable to the facts of the present
case. It appears that in the case before the Bombay High
Court, wherein despite there being an injunction, an action of
the opponent and tantamount to a breach of the injunction
cited before the court, which weighed with the Court for the
appointment of Court Commissioner. As observed hereinabove,
such is not the case at hand.
13. It is true that the Trial Court, while rejecting the
impugned application in the first round and also in the second
round, which is the subject matter of the present application,
NEUTRAL CITATION
C/SCA/8561/2025 ORDER DATED: 01/07/2025
undefined
made same observations, but that would not lead the matter,
as the Court cannot infuse more on the subject matter if the
impugned application remains the same, albeit the arguments
of defendant no. 2 could have been better answered by the
Trial Court in more satisfactory manner. But, that would not
be a factor to be considered by this Court while exercising its
power under Article 227 of the Constitution of India, as
ultimately, the final conclusion is just, reasonable and within
law, this Court would not like to interfere with the order
impugned. [See Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in (2013) 9 SCC 374 (Paras. 6 and 7)
and Garment Craft v. Prakash Chand Goel, reported in (2022)
4 SCC 181 (Paras. 15 and 16)].
14. CONCLUSION
14.1 The upshot of the aforesaid observation, discussion and
reasons, I do not find any merit in the matter, which requires
to be dismissed and which is hereby DISMISSED. No order as
to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
