Gujarat High Court

Jalpravah Co Operative Housingsociety ... vs Kumkumben Piyushkumar Dhandhara on 2 July, 2025

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                            C/SCA/15883/2010                                  JUDGMENT DATED: 02/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 15883 of 2010


                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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                                    Approved for Reporting                  Yes            No
                                                                                           ✓
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                               JALPRAVAH CO OPERATIVE HOUSINGSOCIETY LTD & ANR.
                                                    Versus
                                   KUMKUMBEN PIYUSHKUMAR DHANDHARA & ORS.
                       ==========================================================
                       Appearance:
                       MR ANSHIN H DESAI(1020) for the Petitioner(s) No. 2
                       VENU H NANAVATY(7458) for the Petitioner(s) No. 1
                       RULE SERVED for the Respondent(s) No.
                       2.1,2.2,2.3,2.4,2.5,2.6,2.7,3.1,3.2,3.3,3.4.1,3.5,3.6,4.1,4.2,4.3,4.4,4.5,4.6,5
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                      Date : 02/07/2025

                                                     ORAL JUDGMENT

1. Heard learned advocate Mr. Anshin Desai with learned

advocate Ms.Venu H. Nanavati for the petitioners. Though

served, none appears for the respondents.

2. The parties will be referred to as per their original

position before the Trial Court.

3. The present application is filed under Article 227 of the

Constitution of India seeking following relief:-

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"[A] YOUR LORDSHIPS may be pleased to admit and allow this petition.

[B] 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 direction, by quashing and setting aside the impugned order passed by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, below application exh.106, dated 4th December 2009 in Special Civil Suit No.206 of 2005, at Annexure "A" to the petition, in the interest of justice.

[C] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned order passed by the learned 2nd Additional Senior Civil Judge, Ahmedabad (Rural), at Mirzapur, below application exh.106, dated 4th December 2009 in Special Civil Suit No.206 of 2005, at Annexure "A" to the petition, in the interest of justice.

[D] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioners, as deemed just and proper, in the facts and circumstances of the case."

4. THE SHORT FACTS OF THE CASE

4.1. The petitioners herein are original defendant Nos.5 and

6, whereas respondent No.1 is the original plaintiff of Special

Civil Suit No.206 of 2005, and the rest of the respondents are

original defendants No.1 to 4.

4.2. The civil suit is instituted by respondent no. 1 seeking

declaration and injunction in relation to the suit property,

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which is situated at Survey No.813 of Village Vejalpur, District

Ahmedabad.

4.3. As per the case of the plaintiff, she has purchased the

suit property from the legal heirs of late Jadiben, who was

one of the legal heirs of Nagarji Belaji, who died and left

behind three legal heirs, namely, Dayaji, Jadiben and

Samjuben. As per the case of the plaintiff, she has purchased

the suit land from the legal heirs of the aforesaid Jadiben by

way of registered sale deed on 19th October, 2004.

4.4. The defendant Nos.5 and 6 i.e., the cooperative

societies have appeared and contested the suit, contending,

inter alia, that they are the owners of the suit property by

way of registered sale deed executed by the legal heirs of

Nagarji Belaji on 17th July, 1999, and as per the revenue

record of the suit land, at a given point of time, there was no

legal heir of Jadiben shown, who died without any legal heirs

in the year 1982.

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4.5. It is further stated that apart from the suit land

situated at Survey No.813, there is another adjacent Survey

No.886 having been purchased by them, and because of the

implementation of Town Planning Scheme in the year 1999,

Final Plot No. 19 was given for such parcel of land, which is

suppressed by the plaintiff in the suit.

4.6. It appears that during the pendency of the suit, which

was filed in the year 2005, on the 12th November 2008, the

impugned application came to be filed by the plaintiff below

Exhibit 106 under Order 26 Rule 9 of the Civil Procedure

Code, 1908 (hereinafter referred to as the 'CPC'), thereby

requesting the Trial Court to appoint a Court Commissioner for

preparing panchnama and map to bring on record the position

of the land in question and the construction is carried out on

such parcel of land, which, according to the plaintiff, would

elucidate for the Court to resolve the controversy involved in

the suit.

4.7. The Trial Court, after hearing the parties, vide its

order dated 4th December, 2009, allowed the impugned

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application, which is challenged by defendant Nos.5 and 6 by

filing the present application.

4.8. This Court, vide its order dated 20th December 2010,

initially issued notice and granted stay in terms of para 26(C)

of the present application and, later on, admitted the matter

by issuing Rule on 1st April, 2011, and the interim relief

granted earlier was confirmed.

5. SUBMISSIONS OF THE PETITIONERS-DEFENDANT NOS. 5

AND 6

5.1. Learned Senior Advocate, Mr. Anshin Desai, with

learned advocate Ms.Venu Nanavati would submit that the

impugned application, having been filed after almost three

years from the filing of the suit, is ex facie contrary to the

provisions of Order 26, Rule 9 of the CPC.

5.2. Learned Senior Advocate, Mr.Desai would further

submit that for the first time, the plaintiff came out with a

plea that on getting information about the implementation of

the Town Planning Scheme in the area where the suit land is

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situated, and after gathering information under the RTI Act,

she came to know that Final Plot No. 19 + Final Plot No. 52

were given for the respective parcels of land, which was not

within her knowledge; this is not correct, as the

implementation of the Town Planning Scheme and the final

plot number was earmarked in relation to the suit property

much prior to the filing of the suit.

5.3. Learned Senior Advocate, Mr. Desai, would further

submit that the plain reading of the impugned application,

which was objected to by the petitioners, who filed their

detailed reply, would show that just to collect the evidence on

record, such an application was filed, which is not permissible

in law.

5.4. Learned Senior Advocate, Mr. Desai, would further

submit that no cogent and valid reasons are assigned by the

Trial Court while allowing the impugned application and, as

such, the impugned order suffers from irregularity, inasmuch

as no reasons are assigned for granting it.

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5.5. To buttress his argument, learned Senior Advocate

would rely upon the following decisions:-

(I) Kishorekumar And Another versus Rejeshkumar Jayprakash Agarwal Reported In AIR 1992 (GUJ) 95

(II) Shanti Life Space Pvt. LTD. Through Authorised Person Nitin Chunibhai Gajera Vs. Umang Satishbhai Chokhawala Reported In 2020 (4) GLR 2594 5.6. Making the above submissions, learned Senior

Advocate Mr. Desai, would request this Court to allow the

present application.

6. No other and further submissions are made.

7. POINT FOR DETERMINATION

7.1. The short question that falls for consideration of this

Court is whether, in the facts and circumstances of the case,

the Trial Court has committed any gross error of law and/or a

jurisdictional error by granting the impugned application filed

under Order 26, Rule 9 of the CPC, thereby appointed the

Court Commissioner to carry out panchnama and map?

8. ANALYSIS

9. At the outset, the facts which are noted hereinabove are

not in dispute. The suit is filed seeking declaration and

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injunction in relation to the suit property, whereby the

plaintiff is claiming declaration that the plaintiff be declared

as the owner of the suit land and that the sale deeds which

were executed in favour of the defendants be declared null

and void, and has so also asked for an injunction. Such suit

was filed in the year 2005. The impugned application came to

be filed after about three years of the filing of the suit,

declaring the fact that the plaintiff was not aware of the Town

Planning Scheme and the final plot number given by the

authority in relation to the suit land.

10. Nonetheless, in para 6 of the impugned application, the

plaintiff averred that as the defendants are proceeding with

the construction on Final Plot No. 52, and to bring on record

the position of the suit land as well as the construction being

carried out over the suit property, such impugned application

was filed.

11. The plain reading of the impugned application would

indicate that the plaintiff wants to collect evidence at the

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instance of appointment of Court Commissioner, which is not

permissible in law.

12. It is a now well-settled legal position that the

appointment of Court Commissioner for the collection of

evidence at the instance of any party to the suit is not

permissible, and that would not be the object of exercising

power by the Trial Court under Order 26, Rule 9 of the CPC.

13. The judgments which are cited by learned Senior

Advocate, Mr. Anshin Desai, in the case of Kishor Kumar

(Supra) and Shanti Life Space Pvt. Ltd. (supra), have clearly

laid down such law, and the same would be binding to this

Court. This Court would not have any different opinion than

the opinion expressed in those judgments.

14. Be that as it may, if I analyze the prayers made in the

suit, nowhere it has been mentioned by the plaintiff that there

is a boundary dispute, and as such, the suit is filed seeking a

declaration about the title of the suit land, for which there is

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no necessity for the plaintiff to seek any appointment of Court

Commissioner.

15. I also accept the submissions made by Learned Senior

Advocate, Mr. Desai, that while allowing the impugned

application, the Trial Court has not assigned any cogent and

valid reasons. As such, there is no reason assigned by the

Trial Court while granting the impugned application, except

that what is stated in para 6 of the impugned application is

worded in a different language by the Trial Court while

allowing the impugned application.

16. Considering the matter from all angles would lead to only

one conclusion: that the impugned application is bereft of any

particulars and lacks merit and could not have been

entertained by the Trial Court while exercising its power under

Order 26, Rule 9 of the CPC.