(1.) THIS petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 02. 05. 2009 passed by the Trial Court below application at Ex. 22 whereby the prayer made by the petitioner for appointment of a Court Commissioner has been rejected.
(2.) THE brief facts of the case, as stated in the petition, relevant for the decision are that, the petitioner, who is the original plaintiff, is a Non Resident Indian, now settled in the United Kingdom. The petitioner and respondent No. 7 owned agricultural land at village Chhaya, Porbandar, bearing Survey no. 187/2. The respondent No. 1 owns agricultural land bearing Survey No. 187/1, which is adjoining the lands of the petitioner. According to the petitioner, taking undue advantage of the family dispute between the petitioner and respondent No. 7, the respondent No. 1, in collusion with respondents Nos. 2 to 6, has encroached upon a huge portion of the land of the petitioner and respondent No. 7. The respondent No. 1 has sold his land bearing Survey No. 187/1 to the respondents Nos. 2 to 6 who have also purchased a portion of land out of Survey No. 187/1. The said lands have been converted for non-agricultural purposes and the respondents Nos. 2 to 6 are purportedly developing the said lands for residential and commercial use. It is the case of the petitioner that the respondents Nos. 2 to 6 have removed the Kutchha boundary wall between the lands of the petitioner and the lands of the respondent No. 1 and have encroached upon land admeasuring 4000 sq. mtrs. Owned by the petitioner by merging the said area into the lands of the respondents Nos. 1 to 6. As of today, though the respondents Nos. 2 to 6 have secured the permission to develop the land admeasuring approximately 8802 sq. mtrs. , they are developing approximately 12000 sq. mtrs. of land by encroaching upon the land of the petitioner. It is the case of the petitioner that upon coming to know about the aforesaid developments, he immediately came to India and made complaints to all possible authorities including filing an application before the DILR, Porbandar for measurement of the whole plot of land bearing Survey No. 187 and paid fees of Rs. 3,000/- on 09. 09. 2008, but no steps were taken. The petitioner therefore had no option but to approach the Civil Court, Porbandar, by filing Regular Civil Suit No. 314 of 2008 seeking relief of declaration and permanent injunction against the present respondents. The petitioner moved an application for grant of temporary injunction below Exhibit 5, which is still pending. On 10. 09. 2008, the petitioner had preferred an application below Ex. 6 under the provisions of Order 26 of the Code of Civil Procedure for appointment of a Court Commissioner. Thereafter, both the petitioner and respondents filed a joint application at Ex. 13 on 16. 09. 2008 for measurement of the lands of the plaintiffs as well as the present respondents (original defendants. The said application was rejected by the Trial Court on the ground that respondent No. 7, who is a co-owner of land bearing Revenue Survey No. 187/2 had not been joined in the suit. Accordingly, respondent No. 7 moved an application for being joined as defendant No. 7, which has been allowed and the said respondent is now a party to the suit. The petitioner thereafter moved application below Ex. 22 for appointment of Court Commissioner to measure the lands belonging to him as well as the defendants which has been dismissed by passing the impugned order, giving rise to the filing of the petition.
(3.) MR. MEHUL S. Shah, learned counsel for Mr. Hriday C. Buch, learned counsel for the petitioner, has made the following submissions: