IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4967 of 2024 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI ==========================================================

Approved for Reporting Yes No ==========================================================

HEMANTKUMAR CHANDRAKANT GAYWALA Versus LHR OF DECD ICHCHHUBHAI AMTHABHAI & ORS.

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Appearance:

MR AB MUNSHI(1238) for the Petitioner(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No.

1.1,1.2,1.3,2.1.1,2.1.2,2.1.3,2.1.4,3.1,3.2.1,3.2.2,3.3.1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 17/03/2026

JUDGMENT

1. By way of this petition, the present petitioner – original defendant No.4 under Article 227 of the Constitution of India, 1950 has prayed to quash and set aside the order dated 6.3.2024 passed by learned 7^th Additional Civil Judge, Surat in Regular Civil Suit No.109 of 2024 below Application Exhibit 6.

2. Heard learned advocate Mr. A. B. Munshi for the petitioner.

Though served, none appeared for and on behalf of the respondents. Perused the record.

3. Learned advocate for the petitioner contended that the respondent Nos.1.1 to 1.3 instituted suit for a relief of partition, declaration and permanent injunction coupled with a relief of cancellation of registered sale deed dated 10.8.2023. It is submitted by learned advocate for the petitioner that the petitioner is the title holder of the land in question pursuant to a registered sale deed dated 10.8.2023. In the suit proceedings, the plaintiff filed an application for an appointment of Court Commissioner on 28.2.2024 and the learned Court below appointed the Court Commissioner without issuing a notice to the petitioner on 28.2.2024. Notice issued by the Court Commissioner dated 18.3.2024 was also not served upon the petitioner.

4. It is further contended that in the application for an appointment of Court Commissioner, it is stated by plaintiff that Defender No. 4- present petitioner has purchased 1/2 share in the suit property by way of a registered sale deed and the plaintiffs are in possession of the suit land since years and to ascertain the fact of the possession, an application for appointment of Court Commissioner was submitted. It is submitted that for collecting evidence, the Court Commissioner cannot be appointed. The application, Exhibit 6 is outside the scope of Order 26 – Rule 9 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’). In view of this, a prayer is made for quashing and setting aside the impugned order. No other submissions are made except the above.

5. I have considered the submissions canvassed by the learned advocate for the petitioner as well as the papers placed on record.

6. It appears that the plaintiffs have filed a suit for seeking prayers of partition, declaration and permanent injunction coupled with a relief of cancellation of registered sale deed dated 10.8.2023. In the plaint, one of the prayers is for setting aside the sale deed dated 10.8.2023 by declaring that the sale is without possession in favour of Defendant No.4. On perusal of the order impugned, learned Court below has appointed a Court Commissioner under Order 26 - Rule 9 of the Code to prepare a report and map of the suit property.

7. The scope under Rule 9 of Order 26 of the Code is very clear and specific which is reproduced hereunder:

Order 26 Commissions Rule 9: Commissions to make local investigations:--

“In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Go