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2019 DIGILAW 2291 (RAJ)

Onkar Singh v. Raghunath Singh

2019-08-26

DINESH MEHTA

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JUDGMENT : Dinesh Mehta, J. 1. The present writ petition is directed against the order dated 03.08.2019, passed by the learned Civil Judge & Judicial Magistrate, Jaitaran, District Pali (hereinafter referred to as "the Trial Court"), vide which the Trial Court has appointed Commissioner for adjudication of temporary injunction application. Narrated briefly, facts of the case are that the petitioner-plaintiff had filed a suit for injunction alongwith an application for grant of temporary injunction under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. An ad-interim injunction in plaintiff's favour was granted by the Court. Before the temporary injunction application could be finally decided, the defendant moved an application dated 01.08.2019, under Order XXXIX Rule 7 of the Code of Civil Procedure and prayed that a Commissioner be appointed to apprise the factual position obtaining on the site. It was, inter alia, pleaded in the application that the defendant has demolished his old construction; and that the facts as portrayed by the plaintiff are not correct and the same be ascertained through appointment of a Commissioner. 2. The plaintiff-present petitioner opposed the application for appointment of Commissioner by way of filing a reply dated 02.08.2019 and submitted that there is no necessity of appointing the Commissioner. 3. Learned Trial Court, by way of its order-dated 03.08.2019, proceeded to appoint a Commissioner, inter alia, observing that "a perusal of the pleadings and stand of rival parties, makes it clear that the basic dispute between the parties is with respect to measurement and no specific documentary evidence is available on record so as to reach to a correct conclusion''. The Commissioner was asked to report about the status of the site with a mandate to furnish photographs of the site in question. 4. Mr. Sunil Joshi, learned counsel for the petitioner, challenging the order of appointment of commissioner, contended that the Court cannot appoint Commissioner for the purpose of collecting evidence. He argued that in exercise of power under Order XXXIX Rule 7 of the Code of Civil Procedure, the Court can appoint Commissioner only in two contingencies: (i) if there is violation or breach of the interim order; and (ii) preservation and detention of property in dispute. 5. With the above submissions, Mr. Joshi argued that the Court below was not justified in appointing Commissioner and the order dated 03.08.2019 deserves to be set aside. 6. Mr. 5. With the above submissions, Mr. Joshi argued that the Court below was not justified in appointing Commissioner and the order dated 03.08.2019 deserves to be set aside. 6. Mr. J.K. Bhaiya, learned counsel for the respondent, on the other hand, supporting the order, firstly submitted that the petitioner cannot lay challenge to the order dated 03.08.2019, inasmuch as he has not only accepted the order dated 03.09.2019 but has also actively taken part during the commissioner's visit and therefore, by way of application dated 05.08.2019, sought appointment of another Commissioner, while furnishing objection regarding the Commissioner's report. 7. Learned counsel for the respondent further argued that the principle governing appointment of Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure vis-a-vis principle applicable qua appointment of Commissioner under Order XXXIX Rule 7 of the Code of Civil Procedure are entirely different. The principle that the Commissioner cannot be appointed for the purpose of collecting evidence is applicable, when appointment is sought during the trial, governed by the Order XXVI Rule 9 of the Code of Civil Procedure and the same cannot be applied with force, when it comes to application under Order XXXIX Rule 7 of the Code of Civil Procedure, during decision of application for temporary injunction. 8. Heard learned counsel for the parties and perused the material available on record. 9. Indisputably, by way of the impugned order dated 03.08.2019, the Trial Court had appointed the Commissioner during the adjudication of temporary injunction application. Petitioner did not seriously oppose such request and that is why he firstly participated in the proceedings before the Commissioner, then filed objections on contents of the report and requested the Court to appoint another Commissioner. It is noteworthy that even at the time of filing objections dated 05.08.2019, the petitioner did not raise any grievance about the very appointment of the Commissioner. 10. A perusal of the order dated 03.08.2019 reveals that while appointing the Commissioner, the Trial Court has recorded specific finding that the dispute between the parties is with respect to measurement of land and the status or stage of the construction, which can be determined or ascertained only by way of appointing Commissioner. 11. 10. A perusal of the order dated 03.08.2019 reveals that while appointing the Commissioner, the Trial Court has recorded specific finding that the dispute between the parties is with respect to measurement of land and the status or stage of the construction, which can be determined or ascertained only by way of appointing Commissioner. 11. In considered opinion of this Court, the general Rule that a Commissioner cannot be appointed to collect evidence, cannot be made applicable in the factual matrix of the case like the one at hand, more so at the stage of deciding the temporary injunction application. 12. The reason is obvious: at the time of decision of temporary injunction application, the parties have generally not led their evidence in the main suit, hence, the Court is left with no material to determine as to whether injunction as prayed for deserves to be granted or not. In most of the cases, documentary evidence do not depict the correct picture and even the ocular evidence is also not worthy of reliance for want of their admissibility and dispute about genuinity. 13. In the present case, the Trial Court was confronted with a situation when both the parties have alleged certain part of the land to be their own and have lodged rival claims regarding the common space. It has been the allegation of the plaintiff that the defendant has demolished his old construction and has raised new construction while encroaching upon 2 feet common land. 14. The factual position being complex, in absence of documents, the Trial Court can not arrive at a concrete conclusion and decide temporary injunction application Help of an independent person's opinion regarding status of construction and the position obtaining on the site can be solicited only by appointment of Commissioner, when documentary evidence is not enough. That apart dispute in relation to measurement cannot be easily resolved, unless the commissioner or third party goes to the site and report after measurement. 15. Learned Trial Court had appointed Mr. Pradyumn Shrimali, Advocate, as commissioner who has informed the Court about the status of open space and construction, while furnishing photographs of the site. 16. Argument of Mr. That apart dispute in relation to measurement cannot be easily resolved, unless the commissioner or third party goes to the site and report after measurement. 15. Learned Trial Court had appointed Mr. Pradyumn Shrimali, Advocate, as commissioner who has informed the Court about the status of open space and construction, while furnishing photographs of the site. 16. Argument of Mr. Sunil Joshi, learned counsel for the petitioner that an application under Order XXXIX Rule 7 of the Code of Civil Procedure can be granted only in two situations; either there is breach of interim order granted by the Trial Court or in case when the detention and preservation of the property is required, cannot be countenanced. 17. The third aspect namely 'inspection' which is of utmost importance, cannot be lost site of. The term 'inspection' is very important and application under Order XXXIX Rule 7 of the Code of Civil Procedure can be granted for the purpose of inspection of the contentious site. The Trial Court has appointed Commissioner and ordered the commissioner to inspect the site by way of impugned order dated 03.08.2019, while also requiring him to produce photographs. 18. This Court does not find any error or infirmity in the order dated 03.08.2019, vide which the Commissioner has been appointed. The writ petition, therefore, fails. The stay petition No. 12661/2019 also stands dismissed.