SCA/10428/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10428 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 ? ========================================= = MOHANBHAI RAGHAVBHAI GONDALIYA & 1 - Petitioner(s) Versus RAMABEN CHANDULAL MIYATRA - Respondent(s) ========================================= = Appearance : MS MAMTA R VYAS for Petitioner(s) : 1 - 2. MR MRUGEN K PUROHIT for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/08/2008 ORAL JUDGMENT 1. RULE. Shri Mrugen Purohit, learned advocate waives service of rule on behalf of the respondent-original plaintiff, who is on caveat. SCA/10428/2008 2/5 JUDGMENT 2. With the consent of the learned advocates appearing for the respective parties, the present Special Civil Application is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants have prayed for an appropriate writ, order or direction quashing and setting aside the order dated 21/07/2008 passed by the 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Rajkot in Regular Civil Suit No. 363/2008 by which the learned trial Court has passed an order to appoint the Court Commissioner to prepare the panchnama. 4. It is the contention on behalf of the petitioners-original defendants of Regular Civil Suit No. 363/2008 that earlier the petitioners-original defendants had preferred Regular Civil Suit No. 201/2006 before the learned Civil Court on 21/06/2006 against one Shri Sirajbhai, who is defendant no. 2 in the said suit, and in the said suit, the respondent herein was joined as a party defendant and the Court Commissioner was appointed. The Court Commissioner had drawn the panchnama and the Exh. 5 application came to be decided and disposed of against the respondent herein and the other defendants of Regular Civil Suit No. 201/2006 relying upon the said panchnama. It is submitted that with a view to get out of the order passed below Exh. 5 and without getting the earlier panchnama quashed and set aside, the respondent herein had filed subsequent suit, being Regular Civil Suit No. 363/208, against the petitioners- original defendants and has obtained ex-parte order of appointment of Court Commissioner to prepare the SCA/10428/2008 3/5 JUDGMENT panchnama. It is submitted that the same is not permissible as the same would be second panchnama, and more particularly, the respondent herein had never challenged the earlier panchnama produced in Regular Civil Suit No. 201/2006, and, therefore, it is requested to allow the present Special Civil Application. 5. On the other hand, Shri Mrugen Purohit, learned advocate appearing on behalf of the respondent-original plaintiff has vehemently submitted that at the relevant time when the first panchnama was prepared in Regular Civil Suit No. 201/2006, he was not a party and, therefore, so far as the respondent is concerned, the same cannot be said to be the second panchnama. He has tried to make the submission on merits against the order passed below Exh. 5 by the learned trial Court in Regular Civil Suit No. 201/2006. However, in view of the fact that the appeal is pending before the learned appellate Court against the order passed below Exh. 5, Shri Mrugen Purohit, learned advocate appearing on behalf of the respondent is not further permitted to make any submission. It is submitted that considering the above, in a subsequent independent suit filed by the respondent herein, when the learned trial Court has passed an order to appoint the Court Commissioner and to prepare the panchnama, the same does not warrant any interference of this Court in exercise of powers under Article 227 of the Constitution of India. By making the above submission, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocates appearing for the respective parties. It is the contention on behalf of the petitioners-original SCA/10428/2008 4/5 JUDGMENT defendants that earlier the Court Commissioner was appointed for preparation of panchnama in Regular Civil Suit No. 201/2006 and in that Exh. 5 application was decided and disposed of relying upon the said panchnama, in which, the respondent herein was also a party to the said Exh. 5 application and, therefore, there cannot be any second panchnama unless the first panchnama is set aside. On the other hand, it is the contention on behalf of the respondent that so far as the respondent is concerned, the same cannot be said to be second panchnama, as when the first panchnama was prepared by the Court Commissioner, he was not a party to the suit. It is required to be noted that in Regular Civil Suit No. 201/2006, at the time when the Exh. 5 application was heard, decided and disposed of by the learned trial Court, the respondent herein was a party in the said proceedings and the learned trial Court relying upon the said panchnama has disposed of the Exh. 5 against the respondent and other defendants. It appears and it is not in dispute that at the time of hearing the Exh. 5 application, the respondent had never disputed and/or objected or made any grievance against the first panchnama. Relying upon the first panchnama, the learned trial Court has passed an order against the respondent herein and other defendants. Therefore, it is not open for the respondent herein now to pray for appointment of Court Commissioner to prepare the panchnama. Technically speaking, the same can be said to be the second panchnama as at the relevant time when the Exh. 5 application was heard, panchnama was already there and the respondent was already a party to the said proceedings. Under the circumstances, the submission on behalf of the respondent that the same cannot be said to be second panchnama cannot be accepted. Unless SCA/10428/2008 5/5 JUDGMENT and until the first panchnama is quashed and set aside, normally, there cannot be any second panchnama with respect to the same land. The same can be said to be done for either creating an evidence or filling up the lacuna. 7. Considering the above, the learned trial Court has committed an error in appointing the Court Commissioner for preparation of the panchnama vide application, Exh. 6 in Regular Civil Suit No. 363/2008, and hence, it is required to be quashed and set aside. 8. For the reasons stated hereinabove, the impugned order passed below Exh. 6 in Regular Civil Suit No. 363/2008 appointing the Court Commissioner to prepare the panchnama is hereby quashed and set aside. 9. It goes without saying that whatever observations are made in the present order, they are with respect to deciding the Exh. 6, application only and the same shall not come in the way of any of the parties at the time of hearing of the appeal, which is filed against the order passed below Exh. 5, arising of Regular Civil Suit No. 201/2006. 10. With this, the present Special Civil Application is allowed. Rule is made absolute accordingly. There shall be no order as to costs. (M.R. SHAH, J.) siji