IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.9304/2005. Mishri Lal son of Shri Budha Ram. Versus Subhash Chand son of Shri Vijay Singh & Others Date of Order ::: 22.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Gaurav Gupta, Counsel for the petitioner Shri Virendra Singh Yadav, Counsel for the respondents #### By the Court:- Heard learned counsel for the parties. Plaintiff/petitioner instituted a suit for permanent injunction in the trial Court, wherein a temporary injunction was granted in favour of the plaintiff. According to the plaintiff, the defendants disobeyed the order of the trial Court, therefore, an application under Order 39 Rule 2-A of the Code of Civil Procedure, 1907 was filed. The plaintiff also moved an application under Order 26 Rule 9 and 10, C.P.C. for appointment of the Commissioner for the inspection of the disputed property on 20.10.2005 and, the same was fixed for filing reply as well as arguments by the trial Court on 22.10.2005. The defendants did not file any reply to the application. The trial Court vide its order dated 22.10.2005 rejected the application of the plaintiff under Order 26 Rule 9 and 10, C.P.C. The said order is under challenge in this writ petition filed by the plaintiff. The learned counsel for the petitioner contended that a bare perusal of the impugned order will show that no reason has been assigned by the trial Court for rejecting the application, whereas the appointment of the Commissioner in the present case was very necessary to collect the material evidence to prove the disobedience of the order of the trial Court by the defendants, therefore, the impugned order is liable to be set aside. The learned counsel for the respondents contended that the appointment of the Commissioner was a matter of discretion and the learned trial Court exercised its discretion in rejecting the application, therefore, no inteference is called for in the order passed by the trial Court and, the writ petition is liable to be dismissed. I have considered the submissions of the learned counsel for the parties and examined the impugned order dated 22.10.2005, which clearly shows that the trial Court has not assigned any reasons whatsoever for rejecting the application under Order 26 Rule 9 and 10, C.P.C. In these circumstances, I find that the impugned order is not an speaking order and, I think it fit and proper to set aside the same and direct the trial Court to reconsider the application filed by the plaintiff under Order 26 Rule 9 and 10, C.P.C. Consequently, the writ petition is allowed. The impugned order dated 22.10.2005 passed by the trial court is set aside. The trial court is directed to reconsider the application of the plaintiff under Order 26 Rule 9 and 10, C.P.C. and pass a fresh speaking order after hearing both the parties. No order as to costs. (Narendra Kumar Jain) J. ashok/