Point of Law:
Application under Order XXXIX Rule 7 of the Code of Civil Procedure can be granted only in two situations; either there is breach of interim order granted by the Trial Court or in case when the detention and preservation of the property is required, cannot be countenanced.

JUDGMENT :

Dinesh Mehta, J.

1. The present writ petition is directed against the order dated 03.08.2019, passed by the learned Civil Judge & Judicial Magistrate, Jaitaran, District Pali (hereinafter referred to as "the Trial Court"), vide which the Trial Court has appointed Commissioner for adjudication of temporary injunction application. Narrated briefly, facts of the case are that the petitioner-plaintiff had filed a suit for injunction alongwith an application for grant of temporary injunction under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure. An ad-interim injunction in plaintiff's favour was granted by the Court. Before the temporary injunction application could be finally decided, the defendant moved an application dated 01.08.2019, under Order XXXIX Rule 7 of the Code of Civil Procedure and prayed that a Commissioner be appointed to apprise the factual position obtaining on the site. It was, inter alia, pleaded in the application that the defendant has demolished his old construction; and that the facts as portrayed by the plaintiff are not correct and the same be ascertained through appointment of a Commissioner.

2. The plaintiff-present petitioner opposed the application for appointment of Commissioner by way of filing a reply dated 02.08.2019 and submitted that there is no necessity of appointing the Commissioner.

3. Learned Trial Court, by way of its order-dated 03.08.2019, proceeded to appoint a Commissioner, inter alia, observing that "a perusal of the pleadings and stand of rival parties, makes it clear that the basic dispute between the parties is with respect to measurement and no specific documentary evidence is available on record so as to reach to a correct conclusion''. The Commissioner was asked to report about the status of the site with a mandate to furnish photographs of the site in question.

4. Mr. Sunil Joshi, learned counsel for the petitioner, challenging the order of appointment of commissioner, contended that the Court cannot appoint Commissioner for the purpose of collecting evidence. He argued that in exercise of power under Order XXXIX Rule 7 of the Code of Civil Procedure, the Court can appoint Commissioner only in two contingencies:

(i) if there is violation or breach of the interim order; and

(ii) preservation and detention of property in dispute.

5. With the above submissions, Mr. Joshi argued that the Court below was not justified in appointing Commissioner and the order dated 03.08.2019 deserves to be set aside.

6. Mr. J.K. Bhaiya, learned counsel for the respondent, on the other hand, supporting the order, firstly submitted that the petitioner cannot lay challenge to the order dated 03.08.2019, inasmuch as he has not only accepted the order dated 03.09.2019 but has also actively taken part during the commissioner's visit and therefore, by way of application dated 05.08.2019, sought appointment of another Commissioner, while furnishing objection regarding the Commissioner's report.

7. Learned counsel for the respondent further argued that the principle governing appointment of Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure vis-a-vis principle applicable qua appointment of Commissioner under Order XXXIX Rule 7 of the Code of Civil Procedure are entirely different. The principle that the Commissioner cannot be appointed for the purpose of collecting evidence is applicable, when appointment is sought during the trial, governed by the Order XXVI Rule 9 of the Code of Civil Procedure and the same cannot be applied with force, when it comes to application under Order XXXIX Rule 7 of the Code of Civil Procedure, during decision of application for temporary injunction.

8. Heard learned counsel for the parties and perused the material available on record.

9. Indisputably, by way of the impugned order dated 03.08.2019, the Trial Court had appointed the Commissioner during the adjudication of temporary injunction application. Petitioner did not seriously oppose such request and