1 29 S.B. CIVIL WRIT PETITION NO.8995/2009. Chunni Lal & Anr. Vs. State of Rajasthan & Ors. Date of Order :: 16th September 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Shyam Sunder Ladrecha, for the petitioners. ... BY THE COURT: Having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason to entertain this writ petition. On the submissions as made and the material as placed, it appears that a revenue suit under Sections 88 and 188 of the Rajasthan Tenancy Act has been filed against the petitioners by the respondents Nos. 2 and 3 that remains pending before the Sub-Divisional Officer (North), Bikaner. While the said revenue suit was placed for final hearing, an application came to be moved on behalf of the plaintiffs on 07.03.2009 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure (CPC) requesting the Court to obtain the factual position of the land in question by issuance of a Commission. The learned Trial Court proceeded to allow the said application with a practically non-speaking order dated 07.03.2009 and directed obtaining of site report from the Tehsildar concerned. The petitioner challenged the aforesaid order dated 07.03.2009 in the revision petition before the Board of Revenue that was rejected by the order 16.06.2009 with the learned Member of the Board observing that by way of site 2 inspection, evidence could not be collected in favour of any party but when the plaintiffs have filed the suit for ejectment and perpetual injunction and admitted the possession of the defendant, the report as sought in the present case cannot be said to be related with the aspect of possession; however, the factual position regarding the land in dispute could be ascertained with the site inspection report and there was no justification to interfere in the order so passed by the Trial Court. With reference to the provisions of Order XXVI Rule 9 CPC, it is contended that there was no justification to issue any Commission in this matter because nothing of valuation etc. was required to be ascertained. It is also submitted that the entire evidence being over, obtaining of any report at this stage might cause prejudice to the petitioner. It is further submitted that the order as passed by the learned Member of the Board remains rather ambiguous wherein, even while observing that the report is not to be obtained for collection of evidence in favour of any party, it has also been observed that the report in the present case cannot be said to be related with the question of possession and then, it has not been made clear as to what particular factual aspect was required to be considered by way of the site report ? True it is that the learned Trial Court has issued Commission after the evidence of the parties and that too by a non-speaking order but then, looking to the subject matter of the revenue suit and the allegations as made in the application (Annex.1), if the learned Trial Court found it just and proper to 3 issue a Commission for elucidation of the relevant facts so as to arrive at a just decision, the exercise remains unexceptionable. The order as passed by the learned Member of the Board in rejecting the revision petition does not suffer from any ambiguity. The learned Member has referred to the basic fact that the suit has been filed for eviction and perpetual injunction and looking to the subject matter, has observed that the Commissioner's report cannot be said to have been called for the purpose of deciding the question of possession; but there was no jurisdictional error if the learned Trial Court considered it proper to call for the report regarding the factual situation at the site. Such observations cannot be said to be illegal or ambiguous; and no case is made out for interference in the writ jurisdiction. The suggestion as made during the course of submissions before this Court that obtaining of the report after closure of evidence might cause prejudice to the petitioner remains baseless. After receiving the report, the Trial Court is entitled to deal with the same in accordance with law; and if any submission in regard to such report is made by the petitioner, the Trial Court is competent to deal with the same too in accordance with law. So far this writ petition is concerned, no case is made out for interference. The writ petition stands rejected. //Mohan// (DINESH MAHESHWARI), J.