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2022 Supreme(Guj) 432
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
VASANATLAL CHOTALAL KOSHTI – Appellant
Versus
HARESHKUMAR PRAVINCHANDRA VYAS – Respondent
R/SPECIAL CIVIL APPLICATION NO. 13314 of 2021
Decided on : 19-04-2022
Advocate Appeared:
For the Appellant : VIRAL K SHAH
For the Respondent: MR ISA HAKIM
The main legal point established in the judgment is that the appointment of a Court Commissioner can be necessary to resolve property disputes when there are conflicting claims of possession and goods lying inside the premises.
Headnote:
APPOINTMENT OF COURT COMMISSIONER - PROPERTY DISPUTE - Order 28 Rule 9 of the Code of Civil Procedure - The court appointed a Commissioner to draw the panchnama and map about the articles lying in the suit premises after the defendants illegally locked the property. The court found that the appointment of the Commissioner was necessary to decide the disputes between the parties.
Fact of the Case:
The Respondent filed a civil suit for specific performance, possession, and permanent injunction against the Defendants, who had illegally locked the suit property and taken possession. The Respondent sought the opening of the lock and handover of the property's possession.
Finding of the Court:
The Court found that the appointment of the Commissioner was necessary to decide the disputes between the parties, as there were two locks on the property and goods were lying inside. The Court held that the discretion was properly exercised by the learned Chamber Judge and dismissed the Petition.
Issues: The main issue was the appointment of a Court Commissioner under Order 28 Rule 9 of the Code of Civil Procedure to draw the panchnama and map about the articles lying in the suit premises.
Ratio Decidendi: The Court's decision was based on the necessity to resolve the disputes between the parties, as evidenced by the presence of two locks on the property and the goods lying inside.
Final Decision: The Court dismissed the Petition, upheld the appointment of the Court Commissioner, and ordered the execution of the order passed by the learned Chamber Judge.
JUDGMENT :
ASHOKKUMAR C. JOSHI, J.
1. The Petitioners/Original Defendants have preferred the present Petition under Article 226/227 of the Constitution of India, challenging the order passed by the learned Chamber Judge, Court No.5, City Civil Court, Ahmedabad (hereinafter referred to as “the learned Chamber Judge”) below Exh. 10 in Civil Suit No. 1001 of 2021 dated 8.9.2021, whereby the learned Chamber Judge has allowed the Application Exh.10 preferred by the Respondent/Original Plaintiff. The order reads as under:
“The Application Exh.10 is hereby allowed.
The Commissioner is hereby appointed to draw the panchnama and map about the articles lying in the suit premises after informing the parties and open the lock by the keys lying with both the parties.
The plaintiff has to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) as to remuneration before the Nazir of this Court.”
2. The facts leading rise to the present Petition in nutshell are that the Petitioner No.1/Original Defendant No.1 is the owner and occupant of Shop No. 527/AQ/2/FF/25/A and TenAment No. 0119-79-0486-0001-1, situated at Panjara Pole Ward, Murtimant Complex, Relief Road, Ahmedabad (hereinafter referred to as “the Suit Property”). The Respondent/Original Plaintiff has filed Civil Suit No. 1001 of 2021 before the City Civil Court at Ahmedabad for specific performance, possession and permanent injunction. The Respondent/Original Plaintiff was in possession of the suit property Since the year 2011 and was doing the business of mobile in the name of “Shree Sidhi Mobile. That on 1.1.2011, the Defendant No.1 agreed to sell the suit property to the plaintiff and for the said purpose the plaintiff has given Rs.80,00,000/- to the defendant no.2, who is son of defendant no.1 by way of cash payment in installments and lastly he paid an amount of Rs.50,000 on 12.8.2021. The defendants are not ready and willing to execute the sale deed after accepting the remaining amount of Rs.20,00,000/-. That on 24.8.2021, the defendants have illegally locked the suit property and took the possession of the suit property, however, the plaintiff’s goods are lying inside the suit property, and therefore, plaintiff is unable to continue his business. The plaintiff has also filed an application for interim injunction and inter alia prayed for opening of the lock of the suit premises and hand over the possession of the lock of the suit property. The plaintiff has also filed an application vide Exh.10 for appointment of Court Commissioner under Order 28 Rule 9 of the Code of Civil Procedure to file report regarding the present status of the suit property. That on 2.9.2021, the defendants have filed written statement and reply to injunction application vide Exh.16 in Civil Suit No. 1001 of 2021 inter alia contending in paragraph 8 and 9 that the defendant no.1 is the owner of the suit property and there is no oral or written agreement to sell the suit property between the plaintiff and the defendant No.1, the plaintiff has not paid any amount to the defendants as alleged and documents produced are forged and required to be send to the FSL. That the defendant no.1 went to the office of the Ahmedabad Municipal Corporation and deleted the name of the Plaintiff from the record and for the said purpose the plaintiff has also given declaration. That during the year 2019-2020 and 2020-21, 2012-13 and 2013-14 the name of defendant no.1 was shown as the owner and occupant of the suit property. The defendants have filed reply vide Exh.19 to the Application at Exh.10 – appointment for Commissioner and contended that the plaintiff has not stated any reason for appointment of Commissioner and there is no requirement of appointment of Commissioner in the present matter. On the suit premises, there are locks of the plaintiff and defendants, and therefore, there is no question of appointment of Court Commissioner and has requested to reject the said application. That the learned Chamber Judge vide order impug
