JUDGMENT :

1. Rule.

2. This petition under Articles 226/227 of the Constitution of India is filed by the petitioner – original plaintiff against an order dated 17.12.2015, passed below application Exh. 35 in Regular Civil Suit No. 124 of 2014 by the learned Additional Civil Judge, Khambhalia. By the said application, the petitioner – plaintiff had prayed for to measure and mark the land belonging to the petitioner – plaintiff through the DILR, which came to be rejected by the aforesaid order.

3. Heard, learned advocate Mr. P. M. Lakhani for the petitioner – plaintiff and learned advocate Mr. Krunal Vyas for the respondent.

3.1 The learned advocate for the petitioner, with all vehemence at his command, submitted that the impugned order is contrary to law and the facts and record of the case. He submitted that the learned trial Judge has passed the impugned order without application of mind and in mechanical manner inasmuch as, the measurement, which was sought to be done by way of the application in question was necessary so as to arrive at just conclusion and to get the actual measurement. Further, the petitioner – plaintiff was also ready and willing to pay the requisite fees for the same and in the circumstances, the learned trial Judge ought to have allowed the application. He submitted that no justifiable reasons have been assigned for by the learned trial Judge for arriving to such a conclusion. Accordingly, it is urged that this petition may be allowed in the interest of justice and quash and set aside the impugned order by allowing the application Exh. 35.

4. On the other hand, the learned advocate for the respondent, while heavily opposing the present petition, submitted that the impugned order passed by the learned trial Judge being just and proper, requires no interference. He firstly submitted that this petition under Articles 226/227 of the Constitution of India itself is not maintainable inasmuch as in the catena of decision, the Apex Court has held that powers under these, should be exercised sparingly and not casually. He further submitted that even otherwise, earlier, the petitioner had preferred such an application, whereby, DILR was appointed vide order dated 19.01.2015 and measurement was carried out and report was also submitted and accordingly, as such there is no need to order same exercise again. Moreover, he submitted that the petitioner – plaintiff has not joined the DILR as party before the trial Court nor before this Court and therefore also, this petition is liable to be dismissed for non-joinder of necessary party. Thus, making above submissions, it is requested to dismiss the present petition.

5. Regard being had to the submissions made and considering the averments made so also, perusing the material placed on record, it appears that the petitioner – plaintiff had, by way of the application Exh. 35 sought for appointment of DILR and to measure the land and mark boundaries. The said application came to be rejected by way of impugned order and hence, the grieved petitioner is before this Court challenging the said order. In this regard, 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