Kunvarben Lakhman Manji Shiyani and Another vs Valbai Premji Harji Ashani

S.R. Brahmbhatt, J.—Heard Shri Nalin Thakker for the petitioners. Though served, none appears for the respondent.

The petitioners / original defendant Nos. 1 & 2 in Special Civil Suit No. 92 of 2007 have approached this Court, challenging the order passed by learned 5th Addl. Sr. Civil Court at Bhuj on 28/9/2009, appointing Court Commissioner and allowing exhibit-6 application made by the plaintiff for taking inventory as prayed.

The facts in brief deserve to be set out as under.

For the sake of convenience parties herein are referred to in their original position for the sake ofconvenience.

The original plaintiff who happens to be daughter of petitioner No. 1, filed Special Civil Suit No. 92 of2007 in the Court of Addl. Sr. Civil Judge, Court No. 5, at Bhuj for partition of property, contending that the same is ancestral property. The suit property is consisting of house, situated at village Samtra, taluka Bhuj at Kutch, bearing Panchayat House No. 02/34. The plaintiff also prayed for cancellation of sale of suit premises effected on 21/8/2007. The suit is filed by the plaintiff/respondent here in above, where in present petitioners are shown to be defendant No. 1 & 2. Other defendants are the legal heirs of her late brother who have been residing outside India.

The plaintiff filed application at exhibit-6 being application dated 18/9/2007 seeking appointment ofCourt Commissioner for carrying out inventory panchnama for taking inventory of the goods supposedto have been belonging to defendant No. 3/1 to 3/5. Thus it is to be noted at this stage that the suitcarries cause title wherein defendant No. 3 is said to be no more existing and his heirs are defendant Nos. 3/1, 3/2, 3/3,3 /4 and 3/5.

Said application was resisted by the present petitioners on various grounds, namely the property itself not being ancestral property as alleged, original plaintiff not producing any documentary or other evidence indicating that said property is ancestral property, plaintiff could not have sought inventoryfor seeking indirect evidence in support of her claim. Said application exhibit-6 came to be decidedvide order dated 28/9/2007 by the learned Addl. Sr. Civil Judge at Bhuj, which has been impugned in this petition.

This Court (Coram: D.N. Patel, J) on 16/10/2004 issued notice and on 26/11/2007 issued rule which was made returnable on 26/12/2007 (Coram: D.N. Patel, J). Once again fresh notice of rule was issued by this Court on 9/1/2008 (Coram: D.N. Patel, J) which was made returnable on 18/1/2008, and petitioners were permitted to effect direct service on the said rule. Accordingly petitioners attempted to serve but the service was refused. Affidavit to this effect came to be filed on 18/1/2008. Hence this Court while recording statement of learned advocate for the petitioners on 18/1/2008 passed following order (Coram: Akil Kureshi, J).

Learned advocate Shri Thakkar for the petitioners stated that the respondent has refused to acceptservice of notice of Rule issued by this Court. An affidavit to that effect is also filed. Interim relief interms of Para:9(B) is granted. To be listed in its due course unless moved by the respondent by filing application in this regard. Direct Service permitted.

Today, the matter is listed in due course, as no notice is filed for early hearing on any point of time.

Shri Thakkar, learned advocate for the petitioners contended that the suit property being self-acquired property and the original defendant No. 1''s husband and as there was no evidence brought forward by the plaintiff, the Court ought to have taken this aspect into consideration before accepting application for inventory. Shri Thakkar further submitted that the defendant Nos. 3/1 to 3/5 have not come forward in any manner and the inventries sought for the goods alleged to have been belonging to their father. In view of this, the attempt of plaintiff for creating evidence is apparent, and therefore, the Court ought not to have exercised its discretion in ordering inventory, especially when the house is ultimately sold to defendant No. 2 by registered sale deed. In light of these submissions Shri Thakker contended that the petition deserves to be allowed.

This Court heard learned advocate Shri. Thakkar for the petitioners and perused the documents annexed with this petition. Plain reading of Order-XXVI, Rule-9, would go to show that when Court deems it fit to order local investigation for purpose of elucidating any matter in dispute, the commission could be appointed. However looking to the peculiar facts & circumstances of the case and bearing in mind the contentions in the suit, this Court is of the view that the inventory ought not to have been ordered, especially when the heirs of late brother have not claimed any right nor have they claimed any relief or filed any reply, though they are defendants in the suit. The inventory for goods belonging to late brother, whose heirs are on record and the defendant No. 1 could not have been granted for the sake of granting, which in my view would change entire complexion of the suit and the controversy in question. This Court need not elaborately delve upon other aspects in the matter as the same will otherwise have effect upon pendency of the suit itself. Rival contentions are yet to be examined and in view of that, without elaborating on any other aspects, suffice it to say that the order impugned in this petition deserves to be quashed and is accordingly quashed. Rule made absolute to the aforesaid extent. No order as to costs.

This order, however would in no way be construed as finally pronouncing upon the rights & contentions of the parties in respect of the subject matter of the suit, nor would it preclude the concerned Court to pass appropriate order when appropriate application is made on behalf of other defendants. And, if such application is made, same shall be decided strictly in accordance with law.