IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 4 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE D.G.KARIA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- SHIRINBAI FAZLEABBAS GANDHI Versus MANILAL DAYALJI DUTTANI -------------------------------------------------------------- Appearance: MR SURESH M SHAH for Petitioners MR AM MEHTA for Respondent No. 1 SERVED BY DS for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.G.KARIA Date of decision: 12/08/97 ORAL JUDGEMENT Rule. Mr. A.M. Mehta, Ld. Advocate waives service of the Rule for Respondent no.1. In the facts of the case, the matter is finally heard today. The petitioners who are original defendant nos. 2 to 6 have challenged the validity of the order dated 20.11.1996 whereby the Ld. Civil Judge (S.D.) Jamnagar rejected the application exh.132 of the petitioners herein. By the said application, the petitionersdefendant nos. 2 to 6 sought examination of the Court Commissioner in respect of the report which he had filed as per the order of the Trial Court. The defendants have also requested to recall the plaintiff in view of the new facts brought on record by way of panchanama and the commissioner's report. The petitioners, inter alia, stated in their application that the Commissioner has prepared and submitted a new map in respect of the suit property which the plaintiff himself does not state to be his own property and that the property of some third party namely godown appears to be included in that map and the map and the report are not prepared on the actual position or situation of the property, but the same were so prepared as per the city survey record. According to the petitioner, the measurement being 578.9 sq.ft. of the property as now shown in the map was not actually shown nor there was any order of the court in this regard. Under the circumstances, the petitioners requested the trial court to allow him to cross-examine the Court Commissioner and also to recall the plaintiff. The Ld. Trial Judge rejected that application observing that no new facts are brought on record and as such parties could argue the matter on the basis of the record. It is this order which is sought to be revised in the present petition. I have heard the learned counsel appearing for the parties. Mr. S.M.Shah, Ld. counsel appearing for the petitioners submits that in absence of any clarification of the new map which is produced at the stage when the evidence of the parties is over and brought on record, the petitioners are likely to be prejudiced if factual position is not brought on record by way of cross-examining the witness.The grievance made in para-2 of the application exh.132 of the petitioners has not been dealt with by the Ld. Trial Judge. In these peculiar facts and circumstances of the case, the Ld. Judge has not exercised jurisdiction vested in it. The petitioners are likely to suffer in justice in absence of clarification with regard to the factual position which is now sought to be brought on record after conclusion of the evidence of the parties. Under the circumstances, the impugned order is not sustainable and is liable to be quashed. In the result, petition is allowed. The impugned order passed below application exh.132 in Civil Suit No.647/86 on the file of Ld. Civil Judge (S.D.) Jamnagar is quashed and set aside. Said application exh.132 is granted. Ld. Trial Judge is directed to allow the defendants to cross-examine the Court Commissioner with regard to the panchanama and the map that has been prepared and produced by him. The question of recalling the plaintiff may be decided by the Ld. Judge of the Trial Court, having regard to the outcome of the crossexamination of the Court Commissioner. Rule is made absolute to that extent. There shall be no order as to costs. 12.8.1997 [ D.G. KARIA, J ] **cra497j**rawal