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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Bhikhiben Bhikhabhai Patel & Ors. – Appellants
Versus
Chandulal Premjibhai Patel (Kachchhi Patel) – Respondents
R/Special Civil Application No.5972 of 2024
Decided on : 15-04-2024
Writ Petition - Challenge to Orders - Order XXVI Rules 9 & 10 of the Code of Civil Procedure, 1908 - The court considered the provisions of Order XXVI Rules 9 & 10 of the C.P.C. and the judgments of different High Courts in relation to the examination of the Court Commissioner as a witness. The court found that the petitioners had suppressed material facts and filed the application to delay the proceedings, leading to the dismissal of the petition.
Fact of the Case:
The petitioners filed a writ petition challenging two orders rejecting their applications to examine a Court Commissioner as a witness in a civil suit. The petitioners had previously filed a similar application, which was also rejected.
Finding of the Court:
The court found that the petitioners had suppressed material facts and filed the application to delay the proceedings. It concluded that the trial Court had rightly exercised its discretion in rejecting the application and dismissed the petition.
Issues: The issues revolved around the admissibility of the application to examine the Court Commissioner as a witness and the conduct of the petitioners in filing the application to delay the proceedings.
Ratio Decidendi: The court held that the petitioners' conduct amounted to an abuse of process of law and suppression of material facts, leading to the dismissal of the petition.
Final Decision: The petition was dismissed with no order as to costs.
ORDER :
1. The present petition is filed praying for the following reliefs:
B. May it please the Hon'ble Court to issue an appropriate writ, such as a writ in the nature of certiorari or any other appropriate writ, and to exercise its power of superintendence under Article 227 of the Constitution of India, and thereby quash and set aside the impugned orders dated 16/10/2023 (Exhibit 142) (Annexure - A) and 11/03/2024 (Exhibit 181) (Annexure B), passed by the Learned Principal Senior Civil Judge of Amirgadh at Amirgadh in Regular Civil Suit No. 2 of 2014.
Moreover, the petitioners respectfully pray for an order directing the Learned Trial Court to issue witness summons to Mr. P.B. Patel, the court commissioner and surveyor who prepared the report dated 21/06/2017, thereby providing appropriate opportunity to both parties to examine him through oral testimony in the witness box.
C. Additionally, may the Hon'ble Court pass an appropriate order directing the trail court for recording and exhibition of the court commissioner's report, including the statements of parties made in his presence, the Panchanama, and the measurement records, currently on record of the court below marked as Exh.77 and designated as Mark 77/1 to Mark 77/4.
D. During the pendency and final disposal of the present petition, may the Hon'ble Court please issue an order to stay the further proceedings of RCS No. 2 of 2024, currently pending before the Learned Principal Senior Civil Judge of Amirgadh at Amirgadh. Any other relief that may deem fit and proper in the facts and circumstance of the case may please be grated.”
2. Heard learned advocate Mr. Rajan J. Patel for the petitioners and learned advocate Mr. S.P.Majmudar with learned advocate Mr. Vedant D. Gaikwad appearing on caveat for the respondent.
3. By way of the present petition, two orders are sought to be challenged. One was passed on 16.10.2023, much prior i.e. six months back with an identical application, for summoning the witness at Exh.142, and the same came to be rejected by the learned Presiding Officer. Thereafter, another application dated 11.03.2024 is filed below Exh.181 in the present suit i.e. Regular Civil Suit No.2 of 2014 to examine the same witness and that application is rejected vide order dated 11.03.2024 and therefore, the present petition is filed challenging both the aforesaid orders.
4. Learned advocate Mr. Rajan J. Patel for the petitioners has submitted that in view of earlier order dated 08.12.2021 passed by the Coordinate Bench of this Court in Special Civil Application No.3302 of 2019, whereby the Court has permitted to carry out the commission work by the Second Court Commissioner. It is submitted by learned advocate Mr. Patel that the first report cannot be brushed aside and therefore, by considering the provisions of Order XXVI Rules 9 & 10 of the Code of Civil Procedure, 1908 (C.P.C.), the present petitioners have filed the application to examine the Court Commissioner as a witness and to issue summons to the Court Commissioner and the same came to be rejected by the trial Court, and that order of rejection is apparently illegal, improper and warrants interference by this Court. He has relied on the judgment of the High Court of Punjab and Haryana in the case of Balbir Dewan V. Naveen Chander reported in AIR 1989 PUNJAB AND HARYANA 257. He has also relied on the judgment of Kerala High Court rendered in the case of Sivaraman V. V. C. Narayanan reported in AIR 1987 KERALA 156 and the judgment of Andhra Pradesh High Court rendered in the case of Smt. Vadda Rajeswaramma V. DR. V.L. Narasimha Charyulu and others reported in AIR 1998 ANDHRA PRADESH 202, and has submitted that in view of the aforementioned decisions, the Court has to consider the provisions of Order XXVI Rules 9 & 10 of the C.P.C., which read as under:
The court established that additional evidence cannot be admitted in appellate proceedings if the party had prior opportunities to present it, and that the appointment of a commissioner should not be....
The main legal point established in the judgment is that a new Court Commissioner should not be appointed unless the report of the earlier Commissioner is discarded, and parties are entitled to exami....
The court established that the appointment of a commissioner under Order XXVI Rule 9 of the CPC is not to be used as a means to collect evidence after the closure of proceedings, and such application....
The court clarified that the appointment of an Advocate Commissioner and summoning witnesses are at the court's discretion, not a right of the parties, and the burden of proof lies with the plaintiff....
The court emphasized that the appointment of an Advocate Commissioner and summoning witnesses are at the court's discretion, and the burden of proof rests with the plaintiff.
The discretion of appointing an Advocate Commissioner under CPC does not equate to gathering evidence; it serves to resolve disputes of property boundaries effectively.
The right to make an application for witness summons is available to a party at any stage of the suit, but the trial court may refuse to issue summons only if the application is not bona fide, vexati....
The appointment of a Court Commissioner under Order 26 Rule 9 of the CPC is justified to ascertain construction claims, balancing discretion with the need for technical assessment in legal disputes.
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