1. Rule. Ms. Megha Jani, learned advocate for the respondent (Caveator), waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

2. The challenge in this petition under Article 227 of the Constitution of India, is to the order dated 22.01.2013, passed by the learned 10th Additional Senior Civil Judge, Ahmedabad (Rural) (“the Trial Court” for short), below the application at Exh.85, preferred by the respondent herein for appointment of a Court Commissioner, in Civil Misc. Application No.65 of 2012, whereby, the said application has been allowed.

3. Briefly stated, the relevant facts of the case are that the petitioner instituted Special Civil Suit No.79 of 2009, seeking various reliefs in respect of land bearing Revenue Survey No.137, admeasuring 15,783 sq. mtrs., situated at Makarba, Taluka: Ahmedabad-City-West, District Ahmedabad (“the suit land”). The present respondent is defendant No.7 in the said suit. There is a history of litigation between the parties and five different suits have been instituted by either side against the other, in respect of the same land. The present proceedings emanate from Special Civil Suit No.79 of 2009. In the said suit, the petitioners preferred an application at Exh.5 for the grant of a temporary injunction, which was allowed by an order dated 05.12.2009. The said order was challenged by filing an Appeal from Order No.176 of 2010 in this Court, which was disposed of by order dated 11.08.2010, confirming the order of status quo passed by the Trial Court. According to the petitioners, the respondent herein has committed a breach of the above-mentioned injunction order passed by the Trial Court and confirmed by this Court, by making construction on the suit land. The petitioners, therefore, preferred Civil Misc. Application No.65 of 2012, under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (“the Code” for short) for breach of injunction. The respondent preferred the application at Exh.85 in the said proceedings, for the appointment of a Court Commissioner. This application has been allowed by the impugned order, leading to the filing of the present petition.

4. Mr. Shital R. Patel, learned advocate for the petitioner, has vehemently submitted that the impugned order of the Trial Court is beyond the scope of the suit, as the suit property is Survey No.137, whereas the prayer made by the respondent is for the appointment of a Court Commissioner for inspection of Survey No.137 and Final Plots Nos.310, 317, 315, 305, 302, 323, 322, 282 etc. which Final Plots are not the suit land as described in the plaint. The Trial Court could not have allowed the application permitting inspection of any other area except the suit land, which is comprised of Survey No.137 Makarba.

4.1 It is further submitted that the respondent has made the application only with a view to misleading the Trial Court in the breach of injunction proceedings and to delay the matter. There was no need for the appointment of a Court Commissioner as two reports of Court Commissioners, have already been drawn though in other suits. The respondent cannot be permitted to appoint a Court Commissioner to create evidence in order to divert the attention of the Court from the breach of injunction committed by him, by creating artificial distinctions regarding carving out of final plots.

4.2 Learned advocate for the petitioners has further submitted that the Preliminary Town Planning Scheme, Makarba, has not yet been sanctioned. Only the Draft Town Planning Scheme has been sanctioned; therefore, no finality in law is attached to the Final Plots that have been carved out pursuant thereto. The said Final Plots are subject to variation and change, therefore, it cannot be said that the boundaries of the Final Plots carved out of Survey No.137 have been conclusively dem