1 49 S.B. CIVIL WRIT PETITION NO.4430/2010. Rajeev Vs. State of Rajasthan & Ors. Date of Order :: 10th November 2010. HON’BLE MR.JUSTICE DINESH MAHESHWARI Mr. Manish Shishodia, for the petitioner. Mr. G.R. Punia, Additional Advocate General for the respondents. <><><> BY THE COURT: By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 29.04.2010 (Annex.7) whereby the learned Trial Court proceeded to allow an application moved by the defendants under Order XXXIX Rule 7 of the Code of Civil Procedure and requisitioned a fresh site inspection report while appointing the Tehsildar, Chittorgarh as the Commissioner. The plaintiff-petitioner has filed a civil suit for perpetual injunction against the defendants-respondents and has also filed an application for temporary injunction. The petitioner moved an application under Order XXXIX Rule 7 CPC whereupon an Advocate Commissioner was appointed by the Trial Court who visited the site on 21.04.2010 and submitted the requisite report (Annex.4) while stating that the non- applicants Nos. 1 to 3 chose not to sign on the same. Thereafter, on 24.04.2010, the defendant-non-applicant No.2 moved the application for a fresh site inspection report. 2 In the impugned order dated 29.04.2010, the learned Trial Court observed that there was a serious dispute between the parties regarding the boundaries and while accepting the application so moved by the defendant, appointed the Tehsildar, Chittorgarh as the Commissioner and directed him to visit the site and to submit his report. This writ petition against the aforesaid order dated 29.04.2010 was considered by this Court on 05.05.2010 and while issuing notices, the operation and effect of the impugned order was ordered to remain stayed. The respondents have, however, filed a reply and have, inter alia, pointed out that the concerned Tehsildar did carry out the site inspection on 04.05.2010 and submitted a report before passing of the interim order by this Court. The learned counsel for the petitioner contends that there has not been any justification for the learned Trial Court issuing the Commission afresh and even in the impugned order, no such reason is forthcoming as to why the learned Trial Court at all chose to issue Commission again for the purpose of site inspection when the Commissioner earlier appointed had indeed submitted the requisite report. Having heard the learned counsel for the parties and having taken all the facts and circumstances into comprehension, this Court is unable to find it to be clear case of jurisdictional error on the part of the learned Trial Court in passing the order dated 29.04.2010. 3 For proper consideration of the application for temporary injunction, if the Trial Court found it just and proper to obtain another site inspection report from the Tehsildar, it had the jurisdiction to pass an order to that effect. Though the fact cannot be ignored that the Commissioner earlier appointed has submitted his report but then, it is clear from the impugned order dated 29.04.2010 that the learned Trial Court has not rejected the earlier report so made by the Advocate Commissioner but found it just and proper that the Tehsildar concerned should inspect and make a report on the situation at site. In the circumstances of the case, though this Court does not feel persuaded to consider interference in the order dated 29.04.2010 for want of jurisdictional error but it does appear appropriate and hence is observed that the reports as made by the respective Commissioners being available on record, it shall be expected of the learned Trial Court to take both the reports into account before proceeding further in the matter; and the earlier report as made by the Commissioner on 21.04.2010 shall not be considered as having been rejected merely for issuance of another Commission by the impugned order. However, except the observations aforesaid, no interference is called for in the impugned order. The writ petition is, therefore, dismissed subject, of course, to the aforesaid observations. No costs. (DINESH MAHESHWARI), J. /Mohan/