KAMLESHBHAI AMBALAL Vs. RAJENDRA NATWARLAL PATEL

JUDGEMENT

(1.) Rule. Ms. Megha Jani, learned advocate for the respondent (Caveator), waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

(2.) The challenge in this petition under Article 227 of the Constitution of India, is to the order dated 22.01.2013, passed by the learned 10th Additional Senior Civil Judge, Ahmedabad (Rural) ("the Trial Court" for short), below the application at Exh.85, preferred by the respondent herein for appointment of a Court Commissioner, in Civil Misc. Application No.65 of 2012, whereby, the said application has been allowed.

(3.) Briefly stated, the relevant facts of the case are that the petitioner instituted Special Civil Suit No.79 of 2009, seeking various reliefs in respect of land bearing Revenue Survey No.137, admeasuring 15,783 sq. mtrs., situated at Makarba, Taluka: Ahmedabad- City-West, District Ahmedabad ("the suit land"). The present respondent is defendant No.7 in the said suit. There is a history of litigation between the parties and five different suits have been instituted by either side against the other, in respect of the same land. The present proceedings emanate from Special Civil Suit No.79 of 2009. In the said suit, the petitioners preferred an application at Exh.5 for the grant of a temporary injunction, which was allowed by an order dated 05.12.2009. The said order was challenged by filing an Appeal from Order No.176 of 2010 in this Court, which was disposed of by order dated 11.08.2010, confirming the order of status quo passed by the Trial Court. According to the petitioners, the respondent herein has committed a breach of the above-mentioned injunction order passed by the Trial Court and confirmed by this Court, by making construction on the suit land. The petitioners, therefore, preferred Civil Misc. Application No.65 of 2012, under Order 39 Rule 2A of the Code of Civil Procedure, 1908 ("the Code" for short) for breach of injunction. The respondent preferred the application at Exh.85 in the said proceedings, for the appointment of a Court Commissioner. This application has been allowed by the impugned order, leading to the filing of the present petition.