The main legal point established in the judgment is the interpretation of the scope and object of Order 26 Rule 9 of the Civil Procedure Code, emphasizing its purpose and the need for the Court to examine the necessity of appointing an advocate commissioner.

JUDGMENT :

1. Rule. Learned advocate Mr. N.K. Majmudar waives service of notice of Rule on behalf of respondents.

2. By way of the present petition, the petitioners have challenged the order dated 24.08.2021 passed by the learned Additional Civil Judge, Palanpur below Exh.6, whereby the learned Judge has allowed the application and directed the Surveyor, DILR Office, Palanpur as a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure for preparing report and sketch/map of the site.

3. Heard learned advocate Mr. Sunil K. Shah for the petitioners and learned advocate Mr. N.K. Majmudar for the respondents.

4. It is contended in the petition that the learned Trial Judge has not granted time to file reply to the Exh. 6 application and on the first day of Notice i.e. on 23.08.2021, heard the application and order is passed.

4.1. It is further contended that on 23.08.2021, the learned Judge has not granted any time to file reply to the Exh. 6 application and on the very day Exh. 6 application was heard and on the next day order is passed. Therefore, the same is against the principles of natural justice and violating Article 14 of the Constitution of India.

5. Learned counsel for the petitioners urged and vehemently argued that in the present case, as per the contents of petition, no time has been granted to file any defence nor any reply and straight way the order is passed, which is nothing but collecting the evidence. Therefore, the impugned order is against the settled principles of law and the same deserves to be quash and set aside and application be allowed.

6. Per contra, learned advocate Mr. N.K. Majmudar for the respondents has drawn the attention of this Court at Annexures - ‘D’ at page 43 and ‘E’ commencing from page 44 of the compilation and contended that sufficient time was given. Application was of dated 12.08.2021 and 23.08.2021 and application was heard, Notice was also served on 19.08.2021 and therefore, as such sufficient time was given. Further written statement was filed on 24.08.2021 and therefore, as such, there is no error committed by the learned Trial Court to arrive at conclusion by allowing the application of Court Commissioner or Surveyor through DILR. It is further urged that the learned Trial Court has placed reliance upon different decisions and after discussing in detailed, order is passed, there is no question of interference as per the settled principles of law.

7. At the outset, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon’ble Supreme Court, read as under:

“57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].

58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P. and others vs. Dr. Vijay Anand Maharaj - AIR 1963 SC 946, page 951].

59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.

60. Another distinction between these t