The purpose of having a Court Commissioner is not to gather and collect evidence, and the application under Order 26 Rule 9 of the Civil Procedure Code must fulfill the legal requirements for appointment.

JUDGMENT :

1. Rule returnable forthwith. Mr. Aditya Davda, learned Assistant Government Pleader waives service of notice of Rule for respondent Nos.1 to 4. The board reflects that learned advocate Mr. Deepak Sanchela appears for and on behalf of respondent No.5, but he remained absent.

2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

3. Heard learned advocate Mr. Prit U. Shah for the petitioner and learned Assistant Government Pleader Mr. Aditya Davda for the respondents. Perused the record.

4. By way of this petition, under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

“14(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 27.3.2023 passed by learned Principal Senior Civil Judge, Vyara below application Exh.7 moved by the petitioner in Special Civil Suit No.1 of 2020 and further be pleased to allow the aforesaid application below Exh.7 and direct carrying out process of appointment of Court Commissioner by appointment of competent officer/person in time bound manner (at Annexure D hereto)

(B) During the pendency and till the final disposal of the present petition, Your Lordships may be pleased to stay the further proceedings of Special Civil Suit No.1 of 2020 pending before the Principal Senior Civil Judge, Vyara (at Annexture A and B hereto).

(C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to grant stay/order status quo position of subject property as is forming part of Special Civil Suit No.1 of 2020 pending before the Principal Senior Civil Judge, Vyara and even undertaken by defendants vide undertaking recorded in Annexure I Colly hereto);

(D) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order and direct Hon’ble Principal Senior Civil Judge, Vyara to decide and dispose off Application seeking interim injunction Exh.5 (Annexure B) hereto in time bound manner on or after disposal of present petition.”

5. Learned advocate for the petitioner has submitted that the petitioner – original plaintiff has filed a Special Civil Suit No.1 of 2020 before the learned Senior Civil Judge at Vyara, Tapi for the reliefs, more particularly, relief to secure possession, relief of adverse possession and permanent injunction. An application Exh.7 was filed by the present petitioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’) for appointment of Court Commissioner. It is mainly submitted that the purpose of having a Court Commissioner is to ascertain the correct number of the disputed property and more particularly for the reasons mentioned in the application.

6. On 27.3.2023, the learned Principal Senior Civil Judge, Vyara rejected the application. It is submitted that on the application Exh.7, learned advocate for the defendants have made an endorsement `no objection.’ Thus, when the defendants have no objection in having the Court Commissioner, the learned trial Court could not have dismissed the application for an appointment of the Court Commissioner.

7. It is further submitted that the purpose of having the Court Commissioner was to strengthen all the contentions raised in the injunction application and the documents filed in support thereof. Another purpose of having Court Commissioner is reflected in paragraph No.5 of the application.

8. Learned advocate for the petitioner has further submitted that Order 39 Rule 7 of the Code prescribes the provision that on an application of any party, the Court may make an order to inspect the suit property. Order 39 – Rule 7 is reproduced hereunder:

“7. Detention, preservation, inspection, etc., of subject-matter of suit.—

(1) The Court m