ORAL ORDER

1. This petition is filed for the following prayers: “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 directions quashing and setting aside the impugned order dated 14.07.2021 passed by the Ld.Chief Judicial Magistrate and Additional Senior Civil Judge, Vadodara in Exh.50 in Regular Civil Suit No.530 of 2021 and YOUR LORDSHIPS may be pleased to grant the reliefs prayed for by the petitioner in application Exh.50, in the interest of justice;

B. During the pendency and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned order dated 14.07.2023 passed by learned Chief Judicial Magistrate and Additional Senior Civil Judge, Vadodara, below application Exh.50 in Regular Civil Suit No.530 of 2021 as well as stay further proceedings of Regular Civil suit No.530 of 2021 pending before the learned Chief Judicial Magistrate and Additional Senior Civil Judge, Vadodara in the interest of justice;

(C) xxxx”

2. The facts as emerging from the record are such that there was a dispute between the family members i.e. the plaintiff and her sisters-in-law regarding the suit premises, whereby on earlier occasion the court granted status-quo and thereafter the plaintiff has filed application for breach of injunction under Order 39 Rule 2A of CPC on the ground that there are structural changes done in the suit premises as well as there is change in the sign board by inducting some other person in the suit shop after the order of status-quo is granted. It also transpires from the record that thereafter the plaintiff has filed application for carrying out the inventory of the suit premises by alleging that there is change in the disputed premises after the interim order is passed by this court and also with a view to ascertain the present situation of the suit premises, the application is filed. Such application is resisted by the defendants by filing objections ultimately, the learned trial court has rejected the application by considering the fact that such application cannot be permitted to be granted at this stage more particularly, when the application for Order 39 Rule 2A is pending before the court for consideration and such application will amount to helping either of the party i.e. the plaintiff or defendants to collect the evidence which is not permissible under the provisions of law.

3. Heard learned advocates for the parties.

3.1 Learned advocate Mr.Kavina for the petitioner has strongly relied on the photographs annexed with the application and also contents of the application for appointment of Court Commissioner. He has also drawn my attention towards the impugned order by submitting that no prejudice will be caused to the respondent if the Court Commissioner is appointed. On the contrary, it will help the trial court to appreciate the correct situation of the suit property. He has further submitted that the learned trial court has rejected the application on various grounds that the said application is filed with a view to collect evidence and also not considered the factual aspect. He has also submitted that though the photographs were produced before the court, the court has come to the conclusion that there is no evidence produced along with the application to show that there is change in the suit premises.

3.2 Learned advocate for the petitioner has relied on the judgment of coordinate Bench of this court in the case of Kamleshbhai Ambalal & Ors. V/s Rajendra Natwarlal Patel reported in 2014(5) GLR 4494 and also judgment of the Bombay High Court in the case of Sanjiv K. Simepuruskar V/s Dhaku Tukaram reported in 2023 SCC Online Bom 2230, more particularly, paragraphs 7 to 13 and 15. He submitted that the learned trial court has committed grave error in law by not considering the factual aspect in view of the provisions of Order 26 Rule 9 of CPC and has also