The court upheld the appointment of a Commissioner to inspect the site and submit a site plan under Order 39, Rule 7 of the Code of Civil Procedure, stating that it was within the trial court's jurisdiction to seek inspection for a better conclusion on the application.

1. - Defendant respondent No. 1 Jairoop Ram preferred a suit for specific performance on basis of a receipt dated 27.6.1994. An application to have temporary injunction is also preferred by him with a prayer that the defendants be restrained from causing any kind of hindrance with the rights of the plaintiff in suit property and further they be restrained from causing any kind of interference, breakage etc. in the suit property.

2. In reply to the application the plaintiff petitioner came with the case that he is having possession over the suit property and in revenue records the same is entered in his name. He also denied possession of the plaintiff over the suit property. An application then was filed by the plaintiff respondent before the trial court as per provisions of Order 39, Rule 7 read with Section 151 Code of Civil Procedure to authorise a person to enter upon the suit property to obtain full information about possession on that. Learned trial court by order dated 30.4.2013 accepted the application with a direction for appointment of Commissioner to inspect the site after-2- informing the parties and further to produce a site map before the court. Being aggrieved by the same this petition for writ is preferred.

3. The submission of the petitioner is that no direction could have been given by the learned trial court for appointment of Commissioner to inspect the site and to submit site plan. It is asserted that as per Rule 67 of the General Rules (Civil), 1986 (hereinafter referred to as "the Rules of 1986") no Commissioner could have been appointed with a view to create evidence in favour of the plaintiff. To substantiate the argument learned counsel has placed reliance upon Single Bench judgment of this Court in Union of India & Anr. v. M/s. Kripal Industries Raisingh Nagar, reported in 1998 DNJ (Raj.) 245 .

4. Per contra, the submission of counsel for the respondents is that in the instant matter application is preferred under Order 39, Rule 7 Code of Civil Procedure just to verify factual status of the site, as such, there is no question of creating any kind of evidence.

5. Heard counsel for the parties.

6. By the order impugned learned trial court appointed a Commissioner as per Order 39, Rule 7 Code of Civil Procedure just to inspect the site and to submit a site plan. The appointment of Commissioner in the instant matter is not as per Order 26 Code of Civil Procedure. Rule 67 of the Rules of 1986 pertains to issuing a commission for making local investigation under Order 26, Rule 9 Code-3- of Civil Procedure and not for appointment of a person for making site inspection under Order 7, Rule 39 Code of Civil Procedure. The trial court well within its jurisdiction sought inspection of the site to have a better conclusion on the application under Order 39, Rule 1 and 2 Code of Civil Procedure. As such, I do not find any wrong with the order impugned.

7. So far as the judgment of this Court in the case of Union of India & Anr. v. M/s. Kripal Industries Raisingh Nagar (supra) is concerned, that pertains to local inspection by commission as per Order 26, Rule 9 Code of Civil Procedure. The same, thus, is having no application in the instant matter. Certain other authorities are also cited by learned counsel of the same nature and those too are having no application in the present controversy.

8. For the reasons given above, the writ petition fails, hence dismissed.Petition Dismissed.

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