Local inspections under Order 26 Rule 9 of the CPC cannot be used to assist parties in collecting evidence, particularly when the suit is at the evidence recording stage.

Rule. Learned AGP Mr. Rashesh Patel waives service of rule for respondent Nos.1.1 to 1.3.

1.By way of the present petition under Article 227 of the Constitution of India , the petitioners seek quashing and setting aside absolutely impugned order dated 11.8.2021 passed by learned 11th Additional Senior Civil Judge, Vadodara below application Exh.142 in Regular Civil Suit No.536 of 2009, whereby the learned Trial Court has allowed the said application Exh.142 preferred by the defendant No.2 - respondent No.2 herein and ordered to appoint the Court Commissioner under Order 26 Rule 9 of the CPC for preparing fresh panchnama for the purpose of legal inspection, as prayed for.

2.Brief facts of the case are as under:-

2.1The plaintiffs herein original plaintiffs have filed RegularCivil Suit No.536 of 2009 before the learned Senior Civil Judge, Vadodara. The said suit was, inter alia, filed seeking prayer that the suit land which is situated at Survey No.364 at village Danteshwar, Tal. & Dist. Vadodara admeasuring 1-70-98 Hectare RA Sq. Mts. belongs to the petitioners and respondents should the be permanently restrained from preventing the petitioners from using the said land.

2.2At the time of filing of the suit, the petitioners also preferred an application below Exh.4 for appointment of the Court Commissioner for carrying out Panchnama of the land in question Commissioner. through Pursuant said application, Court the Court Commissioner was appointed and Panchnama was done by the Court Commissioner.

2.3The petitioners have also moved an application under the provisions of Order XXXIX, Rules 1 and 2 of the CPC seeking injunction and by order dated 22.6.2009, injunction as prayed for by the petitioners has been granted in favour petitioners.

2.4The respondents have filed their written statement as well as counter claim.

2.5The respondent No.2 herein original defendant No.2 filed an application below Exh.142 before the learned Trial Court praying for making fresh Panchnama of the suit land. In the said application, it was mentioned by the defendant No.2 that certain construction is made by the petitioners and, therefore, he wants to appoint the Court Commissioner for preparing fresh Panchnama question of the land in question.

2.6In absolutely an manner, shocking learned the 11th Additional Senior Civil Judge, Vadodara by the impugned order dated 11.8.2021 passed below application Exh.142 allowed the said application and ordered fresh Panchnama of the suit land.

2.7After passing of the impugned order, the petitioners preferred an application suspend the Exh.154 to operation, implementation and execution of the impugned order dated 11.8.2021 passed below application Exh.142. The learned 11th Additional Senior Civil Judge, Vadodara vide order dated 11.8.2021 has stayed the operation, implementation and execution of the impugned order dated 11.8.2021 passed below application Exh.142 for a period of 20 days.

2.8Hence, present petition.

3.Heard learned advocate Mr. Jamshed Kavina for the petitioners and learned advocate Mr. Rashesh Patel for the respondents.

4.Learned advocate for the petitioners would submit that Regular Civil Suit No.536 of 2009 was filed by the petitioners before the learned trial Court seeking relief of declaration and permanent injunction restraining the respondents from taking possession of the disputed property without following due process of law. He would further submit that an application was moved at Exh.5 in the said suit seeking relief of protecting the possession of the petitioners. An injunction application was allowed by the learned trial Court directing the defendants of the suit not to interfere with the possession of the plaintiffs without due process of law. He would further submit that AO was preferred against the injunction order before the learned appellate Court, Vadodara, but the same was disposed of directing the learned trial Court to decide the suit within one year from the date of the order. He woul