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2020 DIGILAW 212 (RAJ)

Bhoma Ram v. Shanti Lal

2020-01-22

ARUN BHANSALI

body2020
JUDGMENT : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 25.11.2019 passed by the trial court, whereby the application filed by the petitioner under Order XXVI, Rule 9 CPC has been rejected. 2. The suit was filed by the petitioner for permanent injunction, the application was filed after five years, seeking appointment of Commissioner with the contention that based on the pleadings of the parties, there was dispute pertaining to the subject matter of the suit and therefore, the Commissioner be appointed. 3. The application was resisted by the defendants. 4. The trial court, after hearing the parties, came to the conclusion that the issue, for which the Commissioner was sought to be appointed, was not of special nature, which could only be determined by the Commissioner and that the status can be produced by way of other means i.e. pictures etc. also and consequently, rejected the application. 5. Learned counsel for the petitioner made submissions that looking to the nature of dispute, the appointment of Commissioner would have facilitated the decision of the suit and therefore, rejection of the application was not justified. 6. Submissions have also been made that in another suit pertaining to the same land, Commissioner was appointed, whose report in the said suit is already there and there was no reason to refuse the permission in the present case. 7. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 8. It is well settled that the appointment of Commissioner cannot be made for the purpose of collecting evidence. Looking to the nature of dispute between the parties, the respective plea has to be established by the parties by way of leading appropriate evidence. The averments made in the application seeking appointment of Commissioner itself are sufficient to reach to a conclusion that the appointment was sought only for the purpose of collecting evidence and therefore, the trial court was Justified in rejecting the application filed by the petitioner. 9. No case for interference is made out in the writ petition. There is no substance in the writ petition. The same is, therefore, dismissed.