SCA/295/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 295 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = CHANDULAL MANILAL PANCHAL - Petitioner(s) Versus FINE BUILD CORPORATION & 2 - Respondent(s) ========================================= = Appearance : MR DC DAVE for Petitioner(s) : 1, MR LR PATHAN for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 2 - 3. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/07/2008 ORAL JUDGMENT 1. RULE. Shri L.R. Pathan, learned advocate waives SCA/295/2008 2/4 JUDGMENT service of rule on behalf of respondent no.1. 2. With the consent of the learned advocates, the petition is taken up for final hearing today. 3. By way of this petition, under Article 227 of the Constitution of India, the petitioner-original defendant no. 3 of Regular Civil Suit No. 290/2001 has prayed for appropriate writ, order or direction and to quash and set aside the order dated 22/10/2007 passed by the learned 5th Additional Senior Civil Judge below Exh. 76 by which the learned trial Court has rejected the application submitted by the petitioner for appointment of Court Commissioner for the purpose of panchnama of the goods in question. 4. It appears that the order of status-quo has been granted by the learned Trial Court, which is in operation. The Court Commissioner was already appointed and the panchnama was prepared at the relevant time. Subsequent to the same and during continuation of the status-quo, the petitioner- defendant no. 3 apprehended that the respondents-original plaintiffs and/or others will be disposing of the goods in question in breach of the order of status-quo and, therefore, the petitioner-defendant no. 3 submitted an application below Exh. 76 for appointment of Court Commissioner for preparing the panchnama of the goods in question. However, the same came to be dismissed by the learned trial Court by observing that the said application is premature. 5. In the facts and circumstances of the case, if the Court Commissioner is appointed and the panchnama is prepared, SCA/295/2008 3/4 JUDGMENT then as such there would be no prejudice to the respondents- original plaintiffs. On the contrary the same would be in the interest of respective parties in order to avoid further complications and further allegation or counter allegation. Under the circumstances, it appears to the Court that the learned trial Court has committed an error in not allowing the said application and by not appointing the Court Commissioner. 6. At this stage, Shri L.R. Pathan, learned advocate appearing on behalf of respondent no. 1 has submitted that there are so many air compressors and it will not be possible for the respondent-original plaintiff to bear the expenditure of the Court Commissioner. It is to be noted that it is the petitioner-defendant no. 3, who is insisting for appointment of Court Commissioner for preparing panchnama, naturally he has to bear the expenses. Shri Pathan, learned advocate appearing on behalf of the respondent no. 1-original plaintiff has submitted that even the suit is of the year 2001 and, therefore, it is requested to issue appropriate direction directing the learned trial Court to decide and dispose of the suit as early as possible. 7. The impugned order passed below Exh. 76 dated 22/10/2007 in Regular Civil Suit No. 290/2001 is hereby quashed and set aside and the application Exh. 76 filed by the petitioner-defendant no. 3 for appointment of Court Commissioner for preparing the panchnama of the goods in question is allowed and the expenditure for the same shall be borne by the petitioner-original defendant no. 3. The same shall be completed within a period of four weeks from today SCA/295/2008 4/4 JUDGMENT with an intimation to all the concerned. In the facts and circumstances of the case and as the suit is of the year 2001, the learned trial Court is directed to decide and dispose of the suit as early as possible but not later than 31st December, 2009. 8. With this the petition succeeds. The petition stands disposed of. Rule is made absolute with no order as to costs. (M.R. SHAH, J.) siji