Aacharya Vijay Meruprabhasurishvarji Smarak Trust vs Rajendra Laljibhai Kadivar

Ilesh J. Vora, J

Heard Mr. Nirav C. Sanghavi, learned advocate appearing for and on behalf of the petitioner-original plaintiff.

The petitioner has filed a suit for permanent injunction and declaration with respect to the suit property and alleged illegal construction erected by the defendant. After restoration of the suit, the petitioner-plaintiff moved an application under Order 26 Rule 9 of the Civil Procedure Code for appointment of the Court Commissioner to carry out local inspection of the disputed site. The Court below vide order dated 08.12.2022, refused the prayer for appointment of Court Commissioner mainly on the ground that, DILR Office having no business to carry out measurement of the disputed construction made at the site. Mr. Sanghavi, learned advocate for the petitioner has submitted that, though there is a prayer to carry out the measurement by DILR in the application, but the main prayer is to appoint the Court Commissioner for local inspection and the same was not considered by the Court below. The contention raised by learned advocate for the petitioner is having some substance as the Court below while rejecting the application, overlooked the fact about the prayer for appointment of the Court Commissioner. Thus, without entering into merits of the application Exh.34, this Court is of considered view that, the impugned order dated 08.12.2022 passed in Special Civil Suit No.170 of 2020 is not sustainable in law and the same is hereby quashed. The matter is remanded back to the trial Court to decide the application Exh.34 afresh on its own merits without being influenced by the observations made in the impugned order dated 08.12.2022.

In view of above, the present petition stands disposed of accordingly. Direct service is permitted.