Gujarat High Court
Hetal Kiritkumar Shah vs Dipal Kiritkumar Shah Through Poa ... on 18 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19659 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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HETAL KIRITKUMAR SHAH
Versus
DIPAL KIRITKUMAR SHAH THROUGH POA HOLDER DEEPAK KANAIYALAL PATEL
& ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR NILESH I JANI(3558) for the Respondent(s) No. 2,3,4
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Nilesh
Jani waives service of notice of rule on behalf of
respondents No. 2 to 4. Though served, none appeared on
behalf of respondent No.1.
2. With the consent of the parties, the matter is taken up
for final hearing.
3. Heard learned advocate Mr. Jamshed Kavina for the
petitioner and learned advocate Mr. Nilesh Jani for
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respondents No. 2 to 4.
4. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"(A) YOUR LORDSHIPS may please to admit and allow this petition;
(B) YOUR LORDSHIPS may be pleased to quash and set aside the
order dated 15.07.2023 (Annexure -A) and 18.06.2022 (Annexure- D)
passed below Exhibits 67 and 63 respectively in Regular Civil Suit No
1167/2018 and to grant the permission to appoint the court
commissioner;
(C) Pending the admission and disposal of the present petition
YOUR LORDSHIPS may be pleased to stay the further proceedings of
the in Special civil suit no 1167/2018 pending below the City Civil
Court Ahmedabad;
(D) Ad-interim reliefs in terms of para-C may kindly be granted.
(E) Any other and further reliefs in the interest of justice may kindly
be granted."
5. The parties will be referred as far as possible as per
their original position in the suit.
Facts of the case
6. The petitioner herein is original plaintiff whereas
respondents are defendants of Regular Civil Suit No. 1167 of
2018 filed before the City Civil Court, Ahmedabad City. It
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appears that defendants have requested the trial Court for
appointment of Court Commissioner by filing its application
below Exh. 59 in the suit which was allowed, thereby, the
Court Commissioner was appointed and directed to inspect
the certain immovable properties which was subject matter
of the suit, so mentioned in the aforesaid application.
6.1 It appears that when the actual Court Commissioner'
work was undertaken, out of such immovable properties,
one property mentioned at serial No. 4 in Para-4(a) of the
application filed below Exh. 59 was not carried out, as the
parties have requested the Court Commissioner to postpone
such work of commission for such property.
6.2 Nonetheless, as observed in the report of the Court
Commissioner that the defendants have requested that not
to inspect such property at serial No.4 in Para-4 (a) of the
aforesaid application. So, in light of the aforesaid, the Court
Commissioner submitted his report without inspecting the
property situated at serial no.4 in Para-4(a) of the aforesaid
application.
6.3 Thereafter, the plaintiff filed the impugned application
below Exh. 63 requesting the trial Court to direct the Court
Commissioner to inspect left out property situated at Arise
20, Bungalow No.6 at Village, Mongri, District : Anand, which
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came to be rejected on 18.06.2022.
6.4 After such rejection, an independent application came
to be filed by the plaintiff below Exh. 67 requesting the trial
Court to appoint the Court Commissioner to inspect the
aforesaid property left out in earlier Court Commissioner's
work. Such impugned application also came to be rejected by
the trial Court vide its order dated 15.07.2023. Hence, the
present writ application.
Submission of the petitioner- plaintiff
7. Learned advocate Mr. Jamshed Kavina would submit
that the orders impugned passed by the trial Court are ex-
facie erroneous, perverse and contrary to the settle legal
position of law, inasmuch as the request made by the
plaintiff could not have been rejected by the trial Court.
7.1 Learned advocate Mr. Kavina would further submit that
while passing the impugned order dated 18.06.2022 below
Exh. 63, the trial Court has erroneously observed that the
Court Commissioner has not inspected and carried out
Panchnama for the property in question shown at serial No.4
in Para-4(a) of the application filed below Exh.59 on the
ground that the parties to the suit have requested Court
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Commissioner not to carry out such work. It is respectfully
submitted that plain reading of Court Commissioner' report
dated 01.05.2022 made available on record of the suit would
clearly show that the plaintiff at no point of time requested
the Court Commissioner not to carry out inspection work of
such left out property, but what is so recorded in the said
report that at this stage, such property may not be inspected
thereby, the Court Commissioner may be postponed for the
time being.
7.2 Learned advocate Mr. Kavina would further submit that
when the Court Commissioner was appointed by the Court
to carry out inspection of the properties in question, it would
not left with the discretion of the Court Commissioner not to
inspect all properties and so, he cannot left out certain
properties from the scope of his work. It is respectfully
submitted that such aspect of the matter has been lost sight
by the trial Court when it rejected the impugned application
filed below Exh. 63.
7.3 Learned advocate Mr. Kavina would further submit that
the application filed below Exh. 67 could not have been
rejected, inasmuch as request of the plaintiff was to get it
inspect the property which was left out in first round of
inspection work. It is submitted that when request of the
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defendants have been accepted by the trial Court, thereby,
the Court Commissioner was appointed to inspect all
properties and for any reason, it was left out to be inspected
by the Court Commissioner, there was no harm and prejudice
would cause to the defendants if the prayer made in the
impugned application filed below Exh. 67 was accepted.
7.4 Lastly, learned advocate Mr. Kavina would further
submit that the orders passed by the trial Court is contrary
to record and requires to be interfered by this Court while
exercising its power under Article 227 of the Constitution of
India.
7.5 Making the above submission, learned advocate Mr.
Kavina would request this Court to allow the present writ
application.
Submission of the respondents- defendants
8. Per contra, learned advocate Mr. Nilesh Jani would
submit that there is no error inasmuch as there is no gross
error of law and or jurisdictional error committed by the trial
Court while rejecting the impugned applications filed below
Exh. 63 & 67. He would further submit that when Court
Commissioner was appointed by the trial Court in earlier
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terms wherein in his report, in clear terms, he recorded that
with request of the parties, he has not carried out inspection
work of the property situated at serial No.4 in para-4(a) of
the application filed below Exh.59. It is submitted that when
the plaintiff himself has requested not to carry out
inspection work at relevant point of time, there was no
reason and occasion arise for the trial Court to again appoint
the Court Commissioner to inspect such property.
8.1 Learned advocate Mr. Jani would further submit that
the plaintiff having consciously not objected the work of
Court Commissioner having not submitted his objection
against the Court Commissioner' report at relevant point,
both the impugned applications are frivolous, merit-less and
could not have been entertained, which is correctly not
entertained by the trial Court.
8.2 Lastly, learned advocate Mr. Jani would submit that this
Court should not interfere with the impugned orders passed
by the trial Court when it exercises its supervisory
jurisdiction under Article 227 of the Constitution of India.
8.3 Making the above submission, learned advocate Mr.
Jani would request this Court to dismiss the present writ
application.
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9. No other and further submissions are being made by
any of the learned advocates.
Analysis
10. Having heard learned advocates for the respective
parties and after going through the orders impugned in the
present writ application, the following facts emerges.
(i) It remains undisputed that the application filed by the
defendants below Exh. 59 seeking appointment of Court
Commissioner to carry out the work of inspection of the
properties which are so mentioned in the said application.
There are several immovable properties mentioned in such
application.
(ii) Such application came to be allowed by the trial Court,
whereby, the Court Commissioner was appointed. As per the
order of the trial Court, the Court Commissioner was
supposed to inspect all properties so mentioned in the
application as ordered by the trial Court.
(iii) It also came on record, as per the report of the Court
Commissioner dated 01.05.2022 that Out of all the
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properties, in respect of the property mentioned at serial no.
4 in Para-4(a) of the application filed below Exh. 59, no Court
Commission/inspection work was carried out by the Court
Commissioner, as the defendants had specifically requested
not to carry out such work.
(iii) Although, in the very report, the Court Commissioner
has specifically mentioned that when asked, the parties who
are present at the time of Court Commission's work, they
have requested the Court Commissioner to postpone such
inspection work in regards to the property mentioned at
serial no.4 in Para-4(a) of the aforesaid application.
(iv) When there was no inspection/ Court Commission's
work carried out by the Commissioner as recorded in its
report dated 01.05.2022, at the first instance, the plaintiff
appears to have filed the impugned application below Exh.
63 requesting the trial Court to direct the Court
Commissioner to carry out the inspection of left out
property as work of Court Commissioner was not completed
pursuance to the earlier order passed by the trial Court, such
request was rejected.
(v) Thereafter, the plaintiff has preferred another
impugned application below Exh. 67, thereby, he requested
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the trial Court to appoint the Court Commissioner to inspect
the left out properties, which also met with the same fate.
11. These are undisputed facts and events germane from
the record of the case. This Court is also very conscious and
aware of the scope of this Court while exercising its power
under Article 227 of the Constitution of India, whereby,
every order passed by the trial Court should not be
interfered by this Court.
12. At the same time, when it is found that there is either
procedural irregularity or illegality, and the impugned orders
are erroneous, perverse, or contrary to the set procedure of
law and seriously prejudice the rights of the parties, this
Court can always step in and correct such irregularity found
at the end of the trial Court.
13. The Court Commissioner was appointed by the trial
Court to carry out certain work, thereby, he was required to
inspect every properties which are so mentioned in the
application / order passed by the trial Court. Further, when
such appointed Court Commissioner going to inspect the
properties which are subject matter of the suit, it was not
left to the discretion of the Court Commissioner to pick and
choose of the property to be inspected for Commission
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work. The Court Commissioner should not act as per
advise/desire/command/request of the parties to the suit,
but he has to act as per the order passed by the Court.
14. It is very surprising, having noticed that the Court
Commissioner in his report clearly written that on asking the
parties who are present, in relation to carrying out the work
of property mentioned at serial no.4 in Para-4(a) of the
application, on their request, work of inspection was
postponed. According to my view, the Court Commissioner
could not have resorted to such a practice and, if adopted, at
the first available instance, it requires to be corrected by the
trial Court upon receipt of such report.
15. According to me, the Court Commissioner has no
authority or jurisdiction to dilute the order passed by the
trial Court, nor does have any discretion to even inquire
about the wishes of the parties regarding whether to inspect
subject property or not, for which he was appointed by the
Court.
16. If such a practice is allowed to stand, it would not only
affect the entire process of appointing a Court
Commissioner but also erode the sanctity of the report
submitted by him, as the very purpose behind such
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appointment under Order 26 rule 9 of CPC would to
elucidate the Court to satisfactory resolve the disputes
between the parties.
17. Thus, in view of the aforesaid, at the first instance, the
trial Court should have corrected such error germane from
the report of the Court Commissioner when pointed out by
the plaintiff having filed the application below Exh. 63 in the
suit. Having not done so, when again confronted with
request made by the plaintiff by way of impugned
application filed below Exh. 67 requesting the trial Court to
appoint the Court Commissioner to carry out inspection/
commission work for left out property, such request could
not have been rejected on mere technicality that in earlier
occasion, such request was rejected.
18. In light of the aforesaid peculiar facts and
circumstances of the present case and having observed that
at relevant point of time, the plaintiff never requested the
Court Commissioner not to inspect property at serial no. 4 in
Para-4(a) of the aforesaid application below Exh. 59 and
having not undertaken such inspection by the Court
Commissioner as per the order passed by the trial Court
below Exh. 59 due to request of defendants, the argument
so canvassed by the learned advocate Mr. Jani for the
respondents-defendants, requires rejection.
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19. It can be gainsaid that this Court, while exercising its
power under Article 227 of the Constitution of India,
requires to exercise such power to keep the Court within its
bounds. Whenever, any perversity and/or any erroneous
observation/reasons assigned by the Court while passing the
impugned order having so found, such power of
superintendence requires to be exercised by this Court to
correct such impugned order. [See - Waryam Singh vs.
Amarnath, reported in AIR 1954 SC 215 (para-13) & Bhudev
Mallick alias Bhudeb Mallick and Another vs. Ghoshal and
Others, reported in 2025 SCC OnLine SC 360 (para 53 to
58); 2025 1 GLH 553].
Conclusion
20. In view of the foregoing discussions, observations, and
reasons, I am of the view that impugned orders passed by
the trial Court are not only erroneous, perverse but there
would be procedural irregularity and illegality while passing
such orders having unnoticed the aforesaid aspect of the
case.
21. Thus, the impugned order suffers from procedural
error and requires to be interfered by this Court while
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exercising its limited power under Article 227 of the
Constitution of India to undone the gross error of law
committed by the trial Court.
22. The impugned orders dated 18.06.2022 passed by the
City Civil & Sessions Court No. 21, Ahmedabad City below
Exh. 63 in Regular Civil Suit No. 1167 of 2018 as well as the
order dated 15.07.2023 passed by the same Court below Exh.
67 are hereby quashed and set aside. Accordingly, the
impugned application filed below Exh. 67 by the plaintiff in
the aforesaid suit is hereby allowed.
23. Having so allowed the impugned application filed by
the plaintiff below Exh. 67, now the trial Court is required to
appoint the Court Commissioner, who can inspect the
property so mentioned in the impugned application filed
below Exh. 67 in the aforesaid suit, who can inspect property
in accordance with law. The cost of the Court Commissioner
shall have to be borne by the plaintiff only.
24. In view of the foregoing conclusion, the present writ
application is hereby allowed to the aforesaid extent. Rule is
made absolute accordingly. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
