JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 15.02.2013 passed by the trial court, whereby, the application filed by the petitioner under Order 26, Rule 9 CPC read with Order 39, Rule 7 CPC has been rejected. 2. The plaintiff-respondent - Sunil Kumar filed a suit for permanent injunction alongwith application seeking temporary injunction regarding disputed way said to have been in use from the land of the petitioner. 3. During pendency of the application seeking temporary injunction, an application under Order 26, Rule 9 CPC read with Order 39, Rule 7 CPC was filed by the petitioner, inter alia, indicating that the way of plaintiff's land was from western side of his land and on the eastern side there did not exist any way and presently also there is no way and, therefore, Commissioner be appointed for the purpose of ascertaining factual position of the site; it was also claimed that the only way for reaching to plaintiff's land was from its western side and for that purpose it was necessary to seek Commissioner's report; it was also claimed that on all the four sides of petitioner's land, there is boundary wall, a part of which, has been demolished on the eastern side by the plaintiff after filing of the suit; it was, inter alia, claimed that from the factual position of the boundary wall, gate, way etc. at the site would make the position clear in the case and would facilitate reaching to a right conclusion for the court. The application was opposed by the plaintiff though no reply was filed. 4. The trial court after hearing the parties, came to the conclusion that the matter pertains to existence of way and right to use the same and for that purpose the defendant himself can produce site map and, so far as the right of user, which of the way was the main way and factually which way was being used are all subject matter of evidence and Commissioner cannot be appointed for collecting evidence and further the matter has not reached the stage, wherein, the entire documentary and oral evidence has come on record, for appreciation of which, the factual position is to be brought on record and, consequently, dismissed the application. 5. 5. It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application filed by the petitioner; it was submitted that from a bare look at the documents produced by the petitioner, the previous revenue proceedings between the same parties, the sale deed in plaintiff's favour, it is ex facie clear that no way exists from petitioner's land/fields and the only way available to the plaintiff is from the western side of his land and, therefore, the entire case sought to be made up by the defendants is wholly baseless. 6. It was further submitted that if the factual position regarding the disputed area comes on record by way of Commissioner's report, the same would harm nobody's interest rather the same would clear factual dispute and, therefore, the trial court should not have rejected the application. 7. Reliance was placed on Shanker Lal v. Shri Narbada Shankar & Ors. : 2010 WLC (Raj.) UC 325 and Sisir Saha & Ors. v. Baby Begum alias Mehera Begum & Anr. : 2011 AIR CC 902 (CAL). 8. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner; it was submitted that the trial court was justified in rejecting the application filed by the petitioner, inasmuch as, the entire intention of filing the application has been to collect evidence, which is impermissible; it was also contended that a bare look at the documents i.e. the revenue map would suggest existence of way from petitioner's land only and the order impugned does not call for any interference. 9. Reliance was placed on Durga Shankar v. Board of Revenue for Rajasthan, Ajmer & Ors. : 2008 (6) WLC (Raj.) 266 , Union of India & Anr. v. M/s. Kripal Industries Raisingh Nagar : 1998 (2) WLC (Raj.) 396 and Smt. Parmeshwari Devi v. The Addl. Civil Judge, Bikaner & Ors. : 1998 (1) CDR 213 (Raj.). 10. I have considered the rival submissions made by learned counsel for the parties. 11. : 2008 (6) WLC (Raj.) 266 , Union of India & Anr. v. M/s. Kripal Industries Raisingh Nagar : 1998 (2) WLC (Raj.) 396 and Smt. Parmeshwari Devi v. The Addl. Civil Judge, Bikaner & Ors. : 1998 (1) CDR 213 (Raj.). 10. I have considered the rival submissions made by learned counsel for the parties. 11. From a bare look at the record of the writ petition it is apparent that while the plaintiff is claiming right of way through petitioner's land, the case of the petitioner is that the alleged way does not exist and/or the plaintiff has alternative way to reach his land and, therefore, no right in this regard can be claimed by him. From the photographs produced by the petitioner, it is now apparent that a permanent boundary wall exists around the land belonging to the petitioner; the application (Annexure-10) has been filed by the petitioner without indicating the issue in dispute and the same has been filed with very general observations pointing out the dispute between the parties, regarding existence of the way, claim of the petitioner regarding the status of his land/boundary wall etc. and then a prayer has been made that Commissioner be appointed so that factual position may come before the court. 12. In any dispute of the present nature, unless on account of the oral and documentary evidence and/or the factual matrix, which comes on record, the court feels the requirement for appointment of a Commissioner for clarification of a particular aspect of the matter, just for the sake of bringing on record the factual position, which otherwise is the burden of the parties to a suit, a local Commissioner cannot be appointed. The principle that Commissioner cannot be appointed for collecting evidence is well established and once the trial court having considered the entire aspect and found no reason or cause to sent a Commissioner or to have the site inspected, the order cannot be said to be in violation of provisions of law or suffering from any jurisdictional error, requiring interference by this Court. 13. 13. So far as the judgment in the case of Shankar Lal (supra) is concerned, the Commissioner was appointed for the reasons given in the order under challenge and the Court came to the conclusion that for the purpose of taking the latest position of the mining for deciding the application for temporary injunction for its reservation, the appointment of Commissioner was necessary. 14. Similarly in the case of Sisir Saha (supra) the Calcutta High Court came to the conclusion that the dispute cannot be resolved without taking physical measurement of the facts in question without appointed a Commissioner and, therefore, the Commissioner was appointed. 15. The judgment cited by learned counsel for the respondents in the case of Durga Shankar (supra), M/s. Kripal Industries (supra) and Smt. Parmeshwari Devi (supra) reiterated the settled position of law regarding non-user of appointment of Commissioner for collection of evidence. 16. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs.Petition dismissed. *******