1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ----------------------------------------------------------------------------------------------------- CIVIL WRIT No. 2611 of 2008 TARA CHAND V/S ADDL. DIST. JUDGE, RATANGARH & ORS Mr. BM BHOJAK, for the appellant / petitioner Mr. MC BHOOT, for the respondent Date of Order : 15.4.2009 HON'BLE SHRI N P GUPTA,J. ORDER ----- Vide order dated 22.4.2009, petition was admitted and further proceedings, in the trial court, were stayed. This case comes up for consideration of stay, however, at the request of learned counsel for the parties, the matter is being finally heard at this stage itself. By the impugned order, learned trial court dismissed the petitioner's application dated 15.3.2008, whereby the petitioner sought to produce, on record, the certified copy of the Commissioner's report dated 16.1.2008, which was prepared by the Commissioner, pursuant to the order passed by the learned trial court, in the proceedings for grant of temporary injunction. The trial court has dismissed the application on the ground, that the report was prepared under Order 39 Rule 7 CPC, which cannot be produced on record under Order 26 Rule 10 CPC, as the report prepared under Order 39 Rule 7 constitutes piece of evidence, if the Commissioner is appointed under Order 26 Rule 9 that is for the purpose of ascertainment of facts. 2 In my view, under Order 39 Rule 7 (1) (a), the court may, on application of any party to the suit, make an order, inter alia, for inspection of any property which is the subject-matter of the suit, or as to which any question may arise therein. While under Order 26 Rule 9, the Court may issue a commission for local investigation to be requisite or proper for elucidating any matter in dispute, or for ascertaining the market value of the property, or any mesne profit, damages etc. By virtue of Order 26 Rule 10 (2), report of the Commissioner shall be evidence in the suit and form part of the record. In my view, obviously, if the commissioner would have been appointed under Order 26 Rule 9, then the report itself would have constituted evidence, and would have form part of the record, and since it was issued under Order 39 Rule 7 only, precisely for that reason, the application was filed by the petitioner to produce the inspection report on record as a plaintiff's documents and obviously to prove the same in accordance with law. In my view, there can be no legitimate serious objection in accepting the course adopted by the plaintiff by filing the application dated 15.3.2008. Accordingly, the petition is allowed. Impugned order is set aside and the application of the plaintiff dated 15.3.2008 is allowed. The plaintiff is allowed to produce the certified copy of the commissioner's report on record of the suit as the plaintiff's documents, and the plaintiff is free to prove the documents in accordance with law. Parties to bear their own costs. ( N P GUPTA ),J. /m.asif/