Dinesh Chandra Somani, J.

Heard learned counsel for the parties.

2. The instant petition has been filed by the applicants petitioners assailing the order dated 15.3.2016 passed by Additional Civil Judge, Sawai Madhopur in Civil Contempt Case No.04/2016 tilted as Prem Chand & Ors. v. Sitaram, whereby the application filed by the petitioners under Order 26, Rule 9 CPC, was dismissed.

3. Learned counsel for the petitioners submits that the non-petitioner filed a civil suit alongwith temporary injunction application in the Court of Civil Judge, Sawai Madhopur for injunction regarding a wall situated in western side of the house, which was purchased in auction by his forefathers. It was averred in the suit that half of the portion of the eastern side of the aforesaid house was sold to Shri Mangilal and portion of the western side of the house is in continuous possession of the non-petitioner-plaintiff and a wall was constructed over it by him, to which the defendants are trying to demolish. Thereafter, defendants filed written statement and reply to the temporary injunction application. After hearing both the parties, the learned trial Court vide it's order dated 29.5.2012, restrained the defendants not to raise any construction and demolish the disputed wall and also ordered to maintain status-quo of the disputed place till disposal of the suit. Thereafter, the plaintiff-petitioner raised construction of stairs and altered the position of the disputed wall inspite of status-quo order resulting the defendants have to file civil contempt petition under Order 39, Rule 2 (A) readwith Section 151 CPC on 1.3.2016, for alleged disobedience of order dated 29.5.2012 passed by the learned trial Court, alongwith application under Order 26, Rule 9 CPC to appoint Survey Commissioner and to bring physical position of disputed wall before the Court, which was dismissed by the learned Court below vide impugned order dated 15.3.2016.

4. Learned counsel for the petitioners submits that the Court below was not justified in dismissing the application for appointment of Commissioner, by merely observing that the Survey Commissioner cannot be appointed to collect the evidence in the matters of disobedience of court's orders. Learned counsel also submits that the circumstances of the case are such that actual physical position of the disputed place may come on record only by appointing a Commissioner, therefore, the impugned order passed by the Court below is ex-facie illegal and is liable to be quashed.

5. Learned counsel for the non-petitioner strongly opposed the submissions of learned counsel for the petitioners and submits that apparently the petitioners were seeking appointment of Commissioner for the purpose of collection of evidence, which is not permissible in law and supported the impugned order passed by the Court below.

6. Learned counsel for the respondent placed reliance on Rule 67 of General Rules (Civil), 1986, wherein it is provided that :

"67. Particulars to be given in the order for local investigation - When issuing a commission for making a local investigation under Order 26, Rule 9, the court shall define the points on which the Commissioner has to report. No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner."

7. Submissions of learned counsel for the parties and perusal of material made available to us, reveal that the petitioners filed an application under Order 26, Rule 9 CPC to appoint a Survey Commissioner stating that the non-petitioner started new construction on the disputed wall on 18.2.2016, despite restraint order passed by the Court, which amounts to disobedience of order passed by the Court on 29.5.2012. It is well settled position of law that the burden of proving a fact rests on the party, who substantially asserts the affirmative issues. When a person is bound to prove the existence of any fact, it is said that the burden of proof