6 S.B. CIVIL WRIT PETITION NO.707/2008 Smt. Parmeshwari Devi Vs. The Addl. Civil Judge, Bikaner & Ors. Date of Order :: 1st February 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Sanjeet Purohit for the petitioner BY THE COURT By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 05.01.2008 (Annex.7) passed by the learned Additional Civil Judge (Jr. Division) No.2 Bikaner in Civil Misc. Case No.121/2007 rejecting the application moved by her under Order 39 Rule 7 of the Code of Civil Procedure (CPC). It appears from the material placed on record that the plaintiff-petitioner has filed a suit for perpetual injunction against the defendants essentially on the submissions and allegations that she has a plot bearing No. A-133 at Kanta Khaturia Colony, Bikaner; that the only way of reaching this plot is from a 20 ft. wide lane situated toward eastern side; and that the defendant No. 1 having purchased plot No. A-132 adjoining the plaintiff's plot was seeking to obstruct the said lane by raising construction thereat. The plaintiff has also filed an application seeking temporary injunction against the 1 defendants that no construction be raised on the said lane and the way be not obstructed. The defendants have put the application for temporary injunction as filed by the plaintiff-petitioner to contention on the submissions, inter alia, that there is no such way existing on the eastern side of the plaintiff's plot and in fact a 40 ft. wide road is situated towards southern side of her plot. The parties have produced before the trial court the relevant documentary evidence including the title documents and so also the photographs pertaining to the disputed site. The petitioner moved the application (Annex.5) under Order 39 Rule 7 CPC with the submissions that there was a dispute relating to the way and for clarification of facts and for bringing true position of the site on record, a Commissioner was required to be appointed. The defendants put the application to contest on the submissions, inter alia, that the plaintiff was only seeking collection of evidence by way of appointment of such Commissioner and the application cannot be granted for such a purpose. The learned trial court after examining the material on record, has proceeded to reject the said application by its impugned order dated 05.1.2008 (Annex.7) while observing that the parties have filed the documents and photographs whereby they could establish their case; and merely for 2 collection of evidence, it was not justified to appoint a Commissioner. Assailing the order aforesaid, learned counsel Mr. Sanjeet Purohit has strenuously contended that for the situation at site being not clear even after production of documents by both the parties and there being a serious dispute regarding the approach-way to the plot of the petitioner, it was required of the learned trial court to send a Commissioner for elucidation of the facts and for report on the position obtainable at the site; that the appointment of such Commissioner would have definitely been conducive to effectual and proper determination of the question involved in the matter. Learned counsel emphasizes that the petitioner has moved the application bonafide so that all the facts concerning the site are available on record and such application could not have been rejected on a cursory observation as if the petitioner wants collection of evidence in support of her case. Learned counsel further submits that at present, the learned trial court has passed an ad-interim order for maintaining status quo at the site in question; and even for the purpose of such status quo order, the status obtainable at the site is required to be clarified; and without such clarification, the status quo order might lead to further complications and even to multiplicity of the proceedings and 3 the cause of justice is likely to be defeated. Learned counsel in the last submits that the petitioner may be left free to make appropriate prayer in accordance with law before the learned trial court regarding clarification of the status of the property in question and prays for observations by this Court that the orders passed by the learned trial court may not come in her way. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner and having examined the documents placed on record, this Court is unable to find any reason to consider any interference in the impugned order dated 05.01.2008. The learned trial court has observed that the parties have filed relevant documents and so also the photographs of the site; and was not inclined to send a Commissioner only for the purpose of collecting evidence. The learned trial Court has dealt with the application moved by the petitioner in accordance with law and if the learned trial court has not found any reason or cause to send a Commissioner or to have the site inspected, the order cannot be said to be in violation of the provisions of law or suffering from any jurisdictional error; and there appears no illegality or impropriety in the observations as made by learned trial court so as to consider interference in writ jurisdiction. 4 So far the submissions regarding clarification of status quo are concerned, admittedly, the application for temporary injunction is yet to be decided by the learned trial court, and as to whether any temporary injunction is required to be granted and if so, of what nature and of what effect, are all the matters for consideration of the learned trial court and it cannot be assumed at this stage that the trial court would not be passing the order in accordance with and in conformity with the requirements of law. Whether the position regarding the site in question needs any clarification or inspection or any other interlocutory order is required to be passed are all, again, the matters for the learned trial court to consider while deciding the application for temporary injunction. It remains within the jurisdiction of the learned trial court to adopt and apply such procedure within the framework of law as is conducive to the interest of justice and requisite for effectual determination of the questions before it. No any observations are, therefore, requisite except that any further or other prayer, if made by the parties, the same is to be considered by learned trial court in accordance with law. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI), J. s.soni 5