The main legal point established in the judgment is that there is no bar to appoint a Court Commissioner twice, and the satisfaction of the Court is the only criteria for granting or disallowing the prayer made by the private parties for appointment of the Court Commissioner.

ORDER :

1. By preferring this petition, petitioners have challenged the order passed below Exh.60 in Regular Civil Suit No.289 of 2011 dated 04.02.2015 by learned 7th Additional Senior Civil Judge, Jamnagar.

2. Short facts of present case may be summarized as under:

2.1 As per the contents of the petition, petitioners and respondent nos.1 to 3 are neighbours and respondent nos.1 to 3 are owners of land bearing Survey No.186, Sheet No.8, Soni Fali, Opp. Satyanarayan Temple, Jamnagar. Petitioners are the owners and residing at premises, which is on the southern side and adjacent to the land owned by respondent nos.1 to 3. As per the case of the respondent nos.1 to 3, without obtaining any permission, petitioners started unauthorized constructions on their premises and causing damage. As per their contentions, petitioners illegally encroached upon the common compound. They approached respondent no.4 - Municipal Corporation on 26.07.2011. However, no action was taken against the petitioners, and therefore, they have filed Regular Civil Suit No.289 of 2011 on 12.09.2011 before learned 7th Additional Senior Civil Judge, Jamnagar for declaration, mandatory and permanent injunction against the petitioners and respondent nos.4 and 5 herein. Along with the suit, an application below Exh.8 for appointment of Court Commissioner for carrying out panchnama and sketch of the disputed premises was preferred by respondent nos.1 to 3 i.e. original plaintiffs which was granted and panchnama was carried out as well as sketch/map of the disputed premises after issuing notice to the petitioners. That the petitioners filed their detailed reply vide Exh.31 to the plaint and interim injunction application raising several contentions, including the contention that there was no unauthorized construction or encroachment made by the present petitioners. They also produced a copy of sanad as well as photographs of the premises owned by them vide list Exh.34. The Trial Court framed the issues below Exh.50 on 26.08.2014. After a period of three years from filing of the suit, preparation of the panchnama and rough sketch/map by the Court Commissioner, at a stage of evidence of the plaintiffs, respondent nos.1 to 3 again preferred another application below Exh.60 on 05.11.2014 on the basis of same facts seeking appointment of City Survey or Circle Officer as Court Commissioner to make local investigation, to carry out panchnama, prepare sketch and to make report before the Trial Court. Again, written objections were filed by the present petitioners below Exh.61 on 26.11.2014 against the application below Exh.60 contending that attempt on the part of the respondent nos.1 to 3 was to create and collect evidence which was impermissible as against the scope and object of provisions of Order 26 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC” for short). It was also pointed out that sanad of the premises owned by the petitioners and respondent nos.1 to 3 contains rough sketch and measurement of the disputed premises was placed on record and it was open for the parties to the suit to call for production of Government records and examination of Government officers as witnesses. The learned Trial Court vide order dated 04.02.2015 allowed the application below Exh.60 preferred by original plaintiffs. Upon request being made by the petitioners below Exh.66, the Trial Court was pleased to stay the implementation and execution of the order passed below Exh.60 till 23.03.2015 vide order dated 20.02.2015 so as to enable the petitioners to challenge the same before this Court. Hence, this petition.

3. Heard learned advocate for the petitioners and learned advocate for respondent nos.4 and 5. Mr.Devang R. Bhatt, learned advocate is requested to appear on behalf of respondent no.4 and shall take necessary instructions from respondent no.4. Cause-list shows that respondent nos.1, 2 and 3 are expired.

4. Learned advocate for the petitioners has submi