// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2128/2006 Nand Kishore S/o Shri Ram Chandra @ Dunga Ram Versus Gyarsi Bai Wd/o Shri Devi Shankar and Another Date of Order ::: 04.09.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Hridayesh Singh, Counsel for petitioner #### By the Court:- Heard learned counsel for the petitioner. No one is present on behalf of the respondent in spite of service of notice of the writ petition. The petitioner filed a suit for permanent injunction in the trial court along- with an application for temporary injunction, wherein Commissioner was appointed for site inspection. The Commissioner submitted its report dated 16th November, 2003. The trial court passed an injunction order maintaining status-quo, as per the report of the Commissioner, vide order dated 18th November, 2003. According to the petitioner, the defendant-respondent violated the injunction order passed by the trial court, therefore, an // 2 // application for contempt was filed by him, wherein again an application was filed under Order 26 Rule 9 CPC for appointment of Commissioner to get fresh report of the site. The application was contested by the respondent by filing a written-reply. The trial court, vide its order dated 24th February, 2006 rejected the said application. Being aggrieved with the same, this writ petition has been preferred on behalf of the petitioner. The learned counsel for the petitioner contended that the trial court committed an illegality in rejecting his application under Order 26 Rule 9 CPC only on the ground that for the purpose of collecting the evidence of one party, the Commissioner cannot be appointed whereas, in the facts and circumstances of the present case, the appointment of Commissioner was necessary. He contended that before grant of temporary injunction the trial court had appointed a Commissioner and status-quo was ordered to be maintained as per the report of the Commissioner. In these circumstances, the appointment of Commissioner for factual site report was necessary in addition to applicant's contention regarding violation of injunction order. I have considered the submissions of // 3 // learned counsel for the petitioner in the light of reasons assigned by the trial court for rejecting the application. The trial court rejected the application only on the ground that a Commissioner cannot be appointed to collect evidence in favour of applicant and applicant should prove the violation of the injunction order by producing oral and documentary evidence. It is correct that a Commissioner cannot be appointed for collecting evidence of the applicant but sometimes it becomes necessary that Commissioner should be appointed to know the factual aspect of the site as, in addition to applicant's evidence, the said evidence i.e. report of Commissioner may prove the applicant's evidence also. After considering all the facts and circumstances of the case including the submissions of learned counsel for the petitioner, I am of the view that the appointment of Commissioner in the present case was necessary and the trial court committed an illegality in rejecting the application of the petitioner. Consequently, the writ petition is allowed. The impugned order dated 24th February, 2006 passed by the trial court is set-aside. The application of the petitioner under Order // 4 // 26 Rule 9 CPC is allowed. The trial court is directed to appoint a Commissioner and get report as per prayer made in the application filed by the petitioner. The costs is made easy. (Narendra Kumar Jain) J. //Jaiman//