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SANDEEP N. BHATT
Bhikhiben Bhikhabhai Patel – Appellant
Versus
Chandulal Premjibhai Patel (Kachchhi Patel) – Respondent
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 measuremen
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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