SCA/14269/2008 of VINUBHAI VITHALBHAI PATEL ALIAS VINUBHAI JIVABHAI PATEL Vs RAMJIBHAI MAGANBHAI PARBADIYA on 30 December 2008

Issues

ORAL JUDGMENT

1. Rule. Shri Parthiv B. Shah, learned advocate waives service of rule on behalf of the respondents. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today.service of rule on behalf of the respondents. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today.

2. By way of this petition under Article 227 of the Constitution of India, the petitioners original defendants have prayed for an appropriate writ, order and / or direction quashing and setting aside the impugned order dated 26.11.2008 passed by the learned 6[th] Additional Senior Civil Judge, Vadodara below application Exh. 50 in Regular Civil Suit No. 470 of 2001 by which the learned trial Court in an application submitted by the original plaintiffs has passed an order to appoint the Court Commissioner to prepare panchnama of the disputed property after a period of almost 7 years of filing of the suit.Constitution of India, the petitioners original defendants have prayed for an appropriate writ, order and / or direction quashing and setting aside the impugned order dated 26.11.2008 passed by the learned 6[th] Additional Senior Civil Judge, Vadodara below application Exh. 50 in Regular Civil Suit No. 470 of 2001 by which the learned trial Court in an application submitted by the original plaintiffs has passed an order to appoint the Court Commissioner to prepare panchnama of the disputed property after a period of almost 7 years of filing of the suit.

3. That the respondents herein original plaintiffs had instituted Special Civil Suit No. 828 of 1995 in the Civil Court at Vadodara for specific performance of the agreement dated 9.7.1993 allegedly deed executed by the petitioners. It appears that in the said suit, the petitioners were impleaded as defendants No. 1 to 7 and one Shri Harjivan Maganbhai Parbadiya brother of the plaintiff No. 1 was also impleaded as defendant No. 8 as power of attorney of petitioners. It is the case on behalf of the petitioners that after filing of the Special Civil Suit No. 828 of 1995, the learned trial Court issued summons and the original plaintiffs-respondents herein took summons and served the same upon Shri Harjivan Maganbhai Parbadiya and filed report in the learned trial Court accordingly. As per the petitioners, the compromise pursis was fraudulently made and was signed on the one hand by the respondents-plaintiffs and on the other hand by said Shri Harjivan Maganbhai instituted Special Civil Suit No. 828 of 1995 in the Civil Court at Vadodara for specific performance of the agreement dated 9.7.1993 allegedly deed executed by the petitioners. It appears that in the said suit, the petitioners were impleaded as defendants No. 1 to 7 and one Shri Harjivan Maganbhai Parbadiya brother of the plaintiff No. 1 was also impleaded as defendant No. 8 as power of attorney of petitioners. It is the case on behalf of the petitioners that after filing of the Special Civil Suit No. 828 of 1995, the learned trial Court issued summons and the original plaintiffs-respondents herein took summons and served the same upon Shri Harjivan Maganbhai Parbadiya and filed report in the learned trial Court accordingly. As per the petitioners, the compromise pursis was fraudulently made and was signed on the one hand by the respondents-plaintiffs and on the other hand by said Shri Harjivan Maganbhai Parbadiya purporting to be power of attorney of the petitioners herein. Accordingly, the said Special Civil Suit No. 828 of 1995 came to be compromised and was disposed of on the basis of the compromise pursis vide order dated 2.3.2000. On the basis of the said compromise decree, the said Shri Harjivan Maganbhai Parbadiya executed sale deed in respect of the subject land on 13.4.2000 in favour of respondents-plaintiffs. It is the case on behalf of the petitioners that upon learning of the aforesaid fraud, the petitioners had instituted Special Civil Suit No. 323 of 2001 in the Court of learned Civil Judge (S.D.), Vadodara against the respondents for declaration that the petitioners are the absolute owners of the subject land. They have also prayed for setting aside the compromise decree passed in Special Civil Suit No. 828 of 1995 and also the sale deed executed pursuant thereto. It appears that the panchnama was prepared by the Court Commissioner in the Civil Suit No. 323 of 2001 on 13.4.2001. It appears that the respondents-plaintiffs had filed one another suit being Regular Civil Suit No. 470 of 2001 before the learned Civil Judge (S.D.), Vadodara for declaring that they are the owners of the subject parcel of the land and also prayed for injunction on the basis of the sale deed dated 13.4.2000 executed by the aforesaid Shri Harjivan Maganbhai Parbadiya. It appears that respondents-plaintiffs also filed application Exh. 5 for interim injunction, which came to be allowed by the learned trial Court vide order dated 5.8.2003. Being aggrieved and dissatisfied with the order passed by the learned trial Court passed below Exh. 5 dated 5.8.2003 passed in

Regular Civil Suit No. 470 of 2001, the petitioners preferred Appeal before the District Court, Vadodara. However, there was a delay in preferring the appeal and, therefore, application for condonation of delay was submitted, which came to be rejected by the learned Appellate Court vide order dated 15.9.2005 in Miscellaneous Civil Appeal No. 100 of 2005. Being aggrieved and dissatisfied with the order dated 15.9.2005 passed by the learned Appellate Court, Vadodara passed in Miscellaneous Civil Appeal No. 100 of 2005 in not condoning the delay in preferring the appeal, the petitioners preferred Special Civil Application No. 19546 of 2005 and the said Special Civil Application came to be dismissed by the learned Single Judge of this Court vide order dated 5.9.2006. Being aggrieved and dissatisfied with the order passed by this Court in Special Civil Application No. 19546 of 2005, the petitioners preferred Special Leave to Appeal (Civil) No. 17330 of 2006 before Hon'ble the Supreme Court. The Hon'ble Supreme Court by order dated 22.2.2008 has been pleased to dismiss the said petition, however requesting the learned trial Court to explore the possibility of completing the trial of Civil Suit No. 301 of 2001 and 470 of 2001 as early as possible practicable preferably by the end of October 2008. It appears that during the pendency of the aforesaid proceedings before this Court as well as before the Hon'ble Supreme Court of India, one application Exh. 50 was submitted by the respondents-plaintiffs in Regular Civil Suit No. 470 of 2001 on 3.5.2005 to appoint the Court Commissioner to prepare the panchnama of disputed properties and the said application came to be allowed by the learned trial Court vide impugned order dated 26.11.2008 directing to appoint Court Commissioner to prepare the panchnama under Order 26 Rule 9 of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 26.11.2008 passed below Exh. 50 in Regular Civil Suit No. 470 of 2001, the petitioners original defendants of Regular Civil Suit No. 470 of 2001 have preferred the present Special Civil Application under Article 227 of the Constitution of India. Court vide impugned order dated 26.11.2008 directing to appoint Court Commissioner to prepare the panchnama under Order 26 Rule 9 of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 26.11.2008 passed below Exh. 50 in Regular Civil Suit No. 470 of 2001, the petitioners original defendants of Regular Civil Suit No. 470 of 2001 have preferred the present Special Civil Application under Article 227 of the Constitution of India.

4. Shri Pahwa, learned advocate appearing on behalf of the petitioners has vehemently submitted that learned trial Court has materially erred in allowing application Exh. 50 for appointing Court Commissioner to prepare the panchnama of the disputed properties after a period of almost 7 years of filing of the aforesaid suit. It is submitted that normally the Court Commissioner is to be appointed to prepare the panchnama immediately on filing the suit to know the exact position but Court Commissioner cannot be appointed after a period of 7 years of filing of the suit. It is submitted that as such no reasons have been assigned for appointing the Court Commissioner to prepare the panchnama. It is submitted that as such in the cognate suit being Special Civil Suit No. 323 of 2001 panchnama is already prepared by the Court Commissioner on 13.4.2001, therefore, there is no necessity to prepare the second panchnama. It is submitted that inspite of the direction issued by the Hon'ble Supreme Court requesting the learned trial

Court to decide and dispose of the aforesaid suit at the earliest and / or before the end the of the October, 2008, learned trial Court has not decided and disposed of the suit and on the contrary is disposing the application which will further delay the proceedings. Therefore, it is requested to allow present Special Civil Application and quash and set aside the impugned order passed by the learned trial Court below Exh. 50. earliest and / or before the end the of the October, 2008, learned trial Court has not decided and disposed of the suit and on the contrary is disposing the application which will further delay the proceedings. Therefore, it is requested to allow present Special Civil Application and quash and set aside the impugned order passed by the learned trial Court below Exh. 50.

5. Petition is opposed by Shri Parthiv B. Shah, learned advocate appearing on behalf of the respondents-plaintiffs. It is submitted that the impugned order has been passed by the learned trial Court under Order 26 Rule 9 of the Code of Civil Procedure. It is submitted that to know the exact position of the disputed land in question, the learned trial Court has passed the impugned order which is absolutely innocuous which is not required to be interfered by this Court in exercise the powers under Article 227 of the Constitution of India. It is submitted that no prejudice will be caused to the petitioners-defendants if the Court Commissioner is appointed and the panchnama of the disputed property is prepared. Shri Shah, learned advocate appearing on behalf of the respondents has relied upon the decision of the Hon'ble Supreme Court in the case of Rajinder & Co Vs. Union of India And Others reported in (2000) 6 SCC, 506, in support of his request to dismiss the the present Special Civil Application.advocate appearing on behalf of the respondents-plaintiffs. It is submitted that the impugned order has been passed by the learned trial Court under Order 26 Rule 9 of the Code of Civil Procedure. It is submitted that to know the exact position of the disputed land in question, the learned trial Court has passed the impugned order which is absolutely innocuous which is not required to be interfered by this Court in exercise the powers under Article 227 of the Constitution of India. It is submitted that no prejudice will be caused to the petitioners-defendants if the Court Commissioner is appointed and the panchnama of the disputed property is prepared. Shri Shah, learned advocate appearing on behalf of the respondents has relied upon the decision of the Hon'ble Supreme Court in the case of Rajinder & Co Vs. Union of India And Others reported in (2000) 6 SCC, 506, in support of his request to dismiss the the present Special Civil Application.

6. Heard the learned advocates appearing on behalf of the respective parties. respective parties.

7. At the outset, it is required to be noted that present suit has been filed in the year 2001 and the application Exh. 5 was submitted by the respondents herein original plaintiffs and the same is allowed and there is an injunction in their favour of respondents-plaintiffs and against the petitioners. In the said suit respondents have submitted the application for appointment of the Court Commissioner and to prepare the panchnama on 3.5.2005 i.e. after a period of almost 4 years of filing the suit. Except submitting that to know the exact position of the dispute land nothing has been mentioned why the application has been submitted to appoint the Court Commissioner and prepare the panchnama. It is also required to be noted that in another suit filed by the petitioners being Special Civil Suit No. 323 of 2001, Court Commissioner was already appointed and panchnama was already prepared and as such it can be said that both the suits i.e. Regular Civil Suit No. 470 of 2001 as well as the Special Civil Suit No. 323 of 2001 can be said to be counter suits. In one suit filed by the petitioners declaration is sought that they are the owners of the land in question and they have also prayed for an appropriate order to quash and set aside the sale deed in favour of the respondents. In another suit filed by the respondents herein they have prayed for declaration that they have become the absolute owner by the registered sale deed, which is challenged in the Special Civil Suit No. 323 of 2001. As stated above, normally the Court Commissioner is to be appointed and the panchnama is to be prepared immediately on filing of the suit to know exact position of the disputed land and unless there are changed circumstances pointed out and / or special reasons mentioned Court Commissioner cannot be appointed to prepare the panchnama subsequently. In the present case, as stated above by impugned order the Court Commissioner is appointed to prepare the panchnama after a period of almost 7 years of filing of the suit. As stated above in the application Exh. 50 no special reasons have been mentioned to prepare the panchnama and/ or necessity to prepare the panchnama after a period of 4 years. Under the circumstances, it appears that the learned trial Court has committed an error in directing to appoint Court Commissioner to prepare the panchnama after a period of 7 years on filing the suit, more particularly, when there is already a panchnama in cognate suit. It appears that for some oblique reason which is not disclosed in the application Exh. 50, such an application has been given by the respondents-plaintiffs to appoint Court Commissioner to prepare the panchnama of the disputed property in question. It is to be noted that even the Hon'ble Supreme Court has requested /directed the learned trial Court to decide and dispose of the aforesaid suit on or before 31.10.2008 and said direction is still not complied with.

8. Now, so far as the decision relied upon by the learned advocate appearing on behalf of the respondents is concerned learned advocate appearing on behalf of the respondents is not in a position to point out the facts before the Hon'ble Supreme Court. In the facts and advocate appearing on behalf of the respondents is concerned learned advocate appearing on behalf of the respondents is not in a position to point out the facts before the Hon'ble Supreme Court. In the facts and

circumstances of the case, the said decision will not of any assistance to the respondents. Relying upon the aforesaid decision, it is sought to be contended that whenever Court Commissioner is appointed to prepare the panchnama the same shall not be interfered by the High Court. Every decision depends upon the facts of each case. In case where it is found that application has been submitted to appoint the Court Commissioner to prepare the panchnama and to create the evidence, the Court may interfere with the said order and quash and set aside the same. The facts and circumstances of the case, stated hereinabove it appears that learned trial Court is not justified in appointing the Court Commissioner to prepare the panchnama after a period of 7 years. Under the circumstances, the impugned order deserves to be quashed and set aside.

9. For the reasons stated above, the petition succeeds. The impugned order dated 26.11.2008 passed by the learned 6[th] Additional Senior Civil Judge, Vadodara below application Exh. 50 in Regular Civil Suit No. 470 of 2001 is hereby quashed and set aside. In view of the direction issued by the Hon'ble Supreme Court the learned trail Court is directed to decide and dispose of the Special Civil Suit No. 323 of 2001 and Regular Civil Suit No. 470 of 2001 at he earliest. Rule is made absolute. In the facts and circumstances of the case, there shall be no order costs. impugned order dated 26.11.2008 passed by the learned 6[th] Additional Senior Civil Judge, Vadodara below application Exh. 50 in Regular Civil Suit No. 470 of 2001 is hereby quashed and set aside. In view of the direction issued by the Hon'ble Supreme Court the learned trail Court is directed to decide and dispose of the Special Civil Suit No. 323 of 2001 and Regular Civil Suit No. 470 of 2001 at he earliest. Rule is made absolute. In the facts and circumstances of the case, there shall be no order costs.

(M.R.SHAH,J.)