VASANATLAL CHOTALAL KOSHTI Vs. HARESHKUMAR PRAVINCHANDRA VYAS

JUDGEMENT

(1.) The Petitioners / Original Defendants have preferred the present Petition under Article 226 / 227 of the Constitution of India, challenging the order passed by the learned Chamber Judge, Court No.5, City Civil Court, Anmedabad (hereinafter referred to as "the learned Chamber Judge") below Exh. 10 in Civil Suit No. 1001 of 2021 dtd. 8/9/2021, whereby the learned Chamber Judge has allowed the Application

(2.) The facts leading rise to the present Petition in nutshell are that the Petitioner No.1 / Original Defendant No.1 is the owner and occupant of Shop No. 527/AQ/2/FF/25/A and TenAment No. 0119-79-0486-0001- 1, situated at Panjara Pole Ward, Murtimant Complex, Relief Road, Ahmedabad (hereinafter referred to as "the Suit Property"). The Respondent / Original Plaintiff has filed Civil Suit No. 1001 of 2021 before the City Civil Court at Ahmedabad for specific performance, possession and permanent injunction. The Respondent / Original Plaintiff was in possession of the suit property Since the year 2011 and was doing the business of mobile in the name of "Shree Sidhi Mobile. That on 1/1/2011, the Defendant No.1 agreed to sell the suit property to the plaintiff and for the said purpose the plaintiff has given Rs.80,00,000.00 to the defendant no.2, who is son of defendant no.1 by way of cash payment in installments and lastly he paid an amount of Rs.50,000.00 on 12/8/2021. The defendants are not ready and willing to execute the sale deed after accepting the remaining amount of Rs.20,00,000.00. That on 24/8/2021, the defendants have illegally locked the suit property and took the possession of the suit property, however, the plaintiffs goods are lying inside the suit property, and therefore, plaintiff is unable to continue his business. The plaintiff has also filed an application for interim injunction and inter alia prayed for opening of the lock of the suit premises and hand over the possession of the lock of the suit property. The plaintiff has also filed an application vide Exh.10 for appointment of Court Commissioner under Order 28 Rule 9 of the Code of Civil Procedure to file report regarding the present status of the suit property. That on 2/9/2021, the defendants have filed written statement and reply to injunction application vide Exh.16 in Civil Suit No. 1001 of 2021 inter alia contending in paragraph 8 and 9 that the defendant no.1 is the owner of the suit property and there is no oral or written agreement to sell the suit property between the plaintiff and the defendant No.1, the plaintiff has not paid any amount to the defendants as alleged and documents produced are forged and required to be send to the FSL. That the defendant no.1 went to the office of the Ahmedabad Municipal Corporation and deleted the name of the Plaintiff from the record and for the said purpose the plaintiff has also given declaration. That during the year 2019-2020 and 2020-21, 2012-13 and 2013-14 the name of defendant no.1 was shown as the owner and occupant of the suit property. The defendants have filed reply vide Exh.19 to the Application at Exh.10 -- appointment for Commissioner and contended that the plaintiff has not stated any reason for appointment of Commissioner and there is no requirement of appointment of Commissioner in the present matter. On the suit premises, there are locks of the plaintiff and defendants, and therefore, there is no question of appointment of Court Commissioner and has requested to reject the said application. That the learned Chamber Judge vide order impugned, without considering the submission made by the defendants, allowed the application appointing the Court Commissioner to draw the panchnama and map about the articles lying in the suit premises. The defendants have moved application immediately to stay the impugned order passed below Exh.10 in Civil Suit No. 1001 of 2021 and the learned Chamber Judge was pleased to stay the order for 7 days.

(3.) Heard learned Advocate Mr. Viral K. Shah for the Petitioners and learned Advocate Mr. M.T.M.Hakim for the Respondent.