This petition is preferred under Article 227 of Constitution of India, objecting to the direction of learned 5th Additional Senior Civil Judge, Rajkot, appointing Court Commissioner for drawing the panchnama of the disputed road as well as disputed land in Special Civil Suit No. 31 of 2012.
It is the case of the petitioner that the respondent Nos. 1 to 15 preferred this suit against the petitioner and respondent No.16 where application at Exh-7 also was preferred for appointing court commissioner for drawing panchnama for the road situated on northern side of the land of the petitioner . Court permitted this on 29th February, 2012 and the Court Commissioner had drawn the panchnama and prepared report on 7th March, 2012 and the same is produced along with a letter dated 7th March, 2012. This panchnama is allegdly drawn in an illegal manner and instead of carrying out the same on northern side of the land of the petitioner, Commissioner has carried out panchnama of the road situated on the southern side of the land of the petitioner. It is alleged that this was nothing but an attempt to help the plaintiff-respondent and to mislead the Court. Therefore, objections have been filed vide exh. 20 on dated 22nd April, 2012 . It is further urged that between the same parties Civil Revision Application No. 173 of 2011 has been decided on 30th November, 2011 (Coram:Ms.Harsha Devani, J) had arisen from the orders of Mamlatdar , Padadhari and Deputy Collector, Rajkot. It is further contended that to over-reach the decision of Court, present suit has been filed by the respondents against the present petitioner.
Learned advocate appearing for the petitioner has urged the Court that hearing of application for injunction is yet to begin and at that stage, use of such panchnama would materially jeopardize the interest of the present petitioner. Objections raised against the order of the panchnama and manner of drawing panchnama are yet to be heard and such hearing needs to proceed the hearing of application (at Exh.5) of injunction.
Such a request is as agreed to by the learned advocate is not made before the trial Court and on that count alone, present petition is not to be entertained. Order of drawing of panchnama is already executed against which challenge of the petitioner is before the trial Court. Detail objections in respect of the said panchnama are also at large before the trial Court. Therefore, at this stage, it will be pre-matured to entertain this petition . However, request made by the petitioner that hearing of such objections against the order of the appointment of Court Commissioner as also drawing of panchnama on the southern side of the land of the petitioner shall proceed the hearing of the application for injunction, which will be done on its own merits and on independently examining the issue which have been raised by the petitioner with this Court.
This petition is stands disposed of in the above terms. It is being clarified that this Court has not expressed any opinion on merits.
Direct service is permitted.
(Ms.Sonia Gokani,J) bina Top