1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.9426/2009. : : Ashok Kumar Sharma Vs. Narendra Kumar Sharma & Ors. : : Date of Order 7.9.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. D. S. Kushwaha for the petitioner. Heard learned counsel for the petitioner. 2. This writ petition has been filed by the petitioner aggrieved by order dated 19.1.2009 by which his application for appointment of Commissioner was rejected. 3. Learned counsel for the petitioner submitted that learned Trial Court has erred in law in rejecting such application merely because another application under Order 39 Rule 2A CPC was pending, that earlier application for appointment of Commissioner was rejected. It is contended that earlier application was rejected prior to passing of temporary injunction order dated 3.10.2008. It is this further development which has led to filing of the present writ 2 petition. It is contended that contrary to temporary construction, respondents have made further constructions and have also made the finishing work of the third floor. 4. Having considered the aforementioned arguments and perused the impugned order, I find that learned trial court rejected this application on the ground that facts mentioned in the application under Order 39 Rule 2A CPC shall have to be proved by the petitioner himself. So far as the earlier order by which petitioner's application for appointment of Commissioner was rejected, that order was passed at the stage when the temporary injunction was not issued by the Court. Obviously, whenever the learned trial court would take up the application filed by petitioner under Order 39 Rule 2A CPC, it will decide what course is to adopt to determine the question whether or not further construction has been raised by defendants No.1 and 6 to 8 in violation of injunction order. At that stage, the trial court would again consider the necessity of sending a Court Commissioner for inspection of the disputed property. Rejection of the application of the petitioner prior to passing Court order under Order 39 Rule 2-A, cannot be said to suffer from any infirmity. 3 The writ petition is dismissed with aforesaid observations. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.65.