1. - This writ petition is directed against the order dated 21.11.2008 whereby the learned appellate court below has rejected the application under Order 39, Rule 7 C.P.C.

2. Learned counsel for the plaintiff-petitioner submitted that in the suit for specific performance in relation to mine it was expedient of learned appellate court to ascertain the latest position of the mine while deciding the application for grant of temporary injunction to the plaintiff. Learned appellate court has however rejected the said application without assigning any cogent reason while relying on Rule 67 of General Rule (Civil) 1986 and decision of this Court in case of Dr. Atul Kumar v. Tarun Kumar, 1999 WLC (Raj.) UC 422 .

3. Learned counsel for the petitioner-plaintiff relying on later decision of this Court in Trilokaram & Ors. v. Jetha Ram & Anr. in S.B. Civil Writ Petition No. 701/2010 submits that the purpose of Commissioner's report in present case is not to collect the evidence for supporting the case of plaintiff-appellant but to ascertain the latest position of the mine itself so that the suit property is preserved and maintained till the rights of the parties are decided in the trial.

4. Learned counsel for the respondents opposes these submissions.

5. Having heard learned counsels and in view of the reasons given in the impugned order, this Court finds it expedient to appoint a Commissioner in the present case. The facts in the case of Dr. Atul Kumar v. Tarun Kumar (supra) do not disclose whether the matter pertained to a mine or not and, therefore, the said judgment is distinguishable. The purpose of Order 39, Rule 7 C.P.C. is to maintain and preserve and inspect the subject matter of the suit property particularly in view of the property being a mine in question.

6. The learned court below ought to have appointed the Commissioner and taken the latest position of the mining for deciding the application for temporary injunction so that suit property could be preserved, if considered necessary during the pendency of suit.

7. Consequently, this writ petition is allowed and the impugned order dated 21.11.2008 is set aside and the application filed by the petitioner-plaintiff under Order 39, Rule 7 C.P.C. is allowed. The learned appellate court will proceed further accordingly.Writ Petition Allowed.

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