PATEL KANTILAL RACHHODLAL Vs. NAVRANGJI SHANKERJI THAKOR

JUDGEMENT

(1.) AN application Exhibit­9 in Special Civil Suit No.97 of 2007 came to be preferred by defendant ­ respondent herein for drawing of Panchnama to elucidate the fact as to possession of the suit property. That came to be rejected by the trial Court on consideration of the settled legal position that the parties were required to prove their case on their own strength and the Court cannot help either parties to collect evidence. It was also stated in that order that revenue authorities had already drawn the relevant Panchnama and the liberty to the defendant was reserved to produce a certified copy thereof on the record of Regular Civil Suit.

(2.) SUBSEQUENT thereto, application Exhibit ­ 5 was taken up for hearing and the decision was rendered against the defendant, who challenged it in the District Court by way of Civil Misc. Appeal. During the pendency of the appeal, the application similar to the one which was rejected by the trial Court, came to be preferred before the appellate Court, which granted it and aggrieved original plaintiff ­ petitioner is before this Court questioning the said order.

(3.) RESISTING the petition, learned Counsel for the respondent would vehemently argue that the lower appellate Court had a jurisdiction to entertain such application and there was no bar under the Code of Civil Procedure against preferring of second application on the same subject in view of the fact that the appeal was a continuation of suit. It was contended that Exhibit ­ 5 application was decided without the report of the Commissioner and the appellate Court having deemed necessary to elucidate the true facts on record, jurisdiction was properly exercised and therefore this Court should not interfere under Article 227 of the Constitution of India.