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2017 DIGILAW 1151 (RAJ)

SHAKEELA v. ANWAR KHAN

2017-05-04

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. The petitioner has challenged the order dated 24.1.2017 whereby the learned Civil Judge, Kuchaman City has rejected petitioner's application dated 23.12.2016, filed under Order 39, Rule 7 of the Code of Civil Procedure, seeking appointment of the Commissioner. 2. The facts of the present case are that the petitioner/plaintiff filed a suit for mandatory and permanent injunction and declaration, seeking protection of her possession of the contentious property, along with an application under Order 39, Rule 1 and 2 CPC, for grant of Temporary Injunction. 3. During the pendency of the application, for temporary injunction, the petitioner moved an application dated 23.12.2016 and prayed that a Commissioner be appointed for ascertaining the physical status, neighbourhood and boundaries of the property. The said application has been rejected by the Trial Court, vide order impugned, observing inter alia that as the defendants themselves have admitted the possession of the plaintiff on the disputed premises, there is no requirement of appointing Commissioner. 4. Mr. SP Sharma, learned counsel for the petitioner, assailing the order impugned dated 24.1.2017 submitted that though the defendants have admitted petitioner's possession in relation to the disputed property, however they have disputed the physical status, measurement and sides/boundaries of the subject property, which is very much a subject matter of dispute. 5. He further contended that though, at the time of grant of injunction, the appointment of Commissioner may not be required, but for the purpose of adjudication of the core issues, involved in the present case, based on the pleadings of the parties, appointment of the Commissioner is warranted. 6. Having considered the arguments of Mr. Sharma, this Court is of the considered opinion that at the stage of grant of temporary injunction, since the plaintiff's possession has been admitted by the defendants; there was no need of appointing a Commissioner. The Trial Court has not committed any error in rejecting plaintiff's application, filed under Order 39, Rule 7 of the Code. 7. Adverting to the argument of Mr. Sharma that looking to the contentions of the parties, particularly in relation to boundaries, site and measurement of the property, the appointment of the Commissioner will be necessary, this Court feels that such a stage has not arrived as yet. 8. 7. Adverting to the argument of Mr. Sharma that looking to the contentions of the parties, particularly in relation to boundaries, site and measurement of the property, the appointment of the Commissioner will be necessary, this Court feels that such a stage has not arrived as yet. 8. Needless to observe that after the completion of pleadings, framing of issues and leading evidence, if the Court feels that the appointment of Commissioner is required, such order can be made by the Court, for which a separate provision in the form of Order 26, Rule 9 of the Code is available. 9. At the time of deciding application for grant of Temporary Injunction, the Court was required to protect possession of the plaintiff, keeping in view the prima facie case. Since the possession of the petitioner was admitted by the defendant there was no need to send Commissioner and ascertain the factum of possession, which was otherwise not in dispute. Other factors were not germane to the decision of the application for Temporary Injunction. As such the rejection of the subject application cannot be held illegal. 10. Merely because the application under Order 39, Rule 7 of the Code has been rejected, it cannot take away right of the plaintiff to file appropriate application at a subsequent stage. Needless to observe that if such an application is filed by the plaintiff, the same shall be decided in accordance with law, not being influenced by the observations made herein. 11. With these observations, the writ petition is dismissed.