JUDGMENT :

1. Though this matter has been listed in the “For Orders” category, but with the consent of learned counsel for both the parties, the matter has been finally heard.

2. The instant writ petition has been preferred by the petitioners under Article 227 of the Constitution of India with the following prayers:-

“(i) quash the impugned order dated 29.03.2019 (Annexure-8) passed by the Learned Civil Judge, Gadhi, District Banswara in Civil Misc. Case No. 21/2017; and

(ii) the application filed by the respondents Under Order 39 Rule 7 C.P.C. may be dismissed with costs in toto; and

(iii) any other appropriate relief which this Hon’ble Court deems fit necessary in the fact and circumstances of the present case be granted in favour of the petitioners; and

(iv) Cost of the writ petition kindly ordered to be awarded to the petitioners.”

3. Brief facts of the case are that respondents-plaintiffs filed a suit for permanent injunction against the petitioners-defendants regarding their jointly owned and possessed land situated in Araji No.508 Old No. 678,679 admeasuring 775 square yards of Village Lokiya, Patwar Halka Arthuna, Tehsil Gadhi, District Banswara which was purchased from one Daya Lal and others on 28.07.1983 and thereafter the same was converted into Abadi land by the order of Collector dated 24.02.1986.

4. The suit No.16/2017 was filed stating therein that the petitioner-defendants are encroaching upon the respondents-plaintiffs’ jointly owned and possessed land and that the petitioners-defendants have dismantled the boundary wall constructed by the respondents-plaintiffs using the JCB machine at the land in question. Along with the suit, a temporary injunction application was also filed by the respondents-plaintiffs. The petitioners-defendants filed a detailed written statement to the plaint and the temporary injunction application filed by the respondents-plaintiffs. Thereafter, the learned Civil Judge (JD), Gadi, Banswara (hereinafter referred to as ‘the learned trial Court’), passed an interim order dated 25.05.2017 (Annex.3) and directed both the parties to maintain status quo.

5. During the pendency of the suit, the respondents-plaintiffs moved an application seeking appointment of Commissioner for site inspection, which was allowed by the learned trial Court, and the Commissioner so appointed submitted his report dated 27.05.2017 (Annex.2).

6. The respondents-plaintiffs thereafter filed a contempt petition dated 31.05.2017 (Annex.4) under Order 39 Rule 2A of the Civil procedure Code 1908 (hereinafter referred to as CPC” for short) before the learned trial court against the petitioners to which a reply (Annex.5) was filed by the petitioners stating therein that they have not raised any kind of construction over the land in question.

7. Thereafter the respondents-plaintiffs filed an application under Order 39 Rule 7 CPC seeking appointment of site commissioner and seeking report from him, which was allowed by the learned trial Court vide order dated 29.03.2019 (Annex.8) and again appointed a Commissioner.

8. Hence, being aggrieved of the order dated 29.03.2019 (Annex.8), the petitioners have preferred the present writ petition.

9. Learned counsel for the petitioners-defendants made following submissions:-

(a) That the learned trial Court has committed grave illegality and irregularity in passing the impugned order and appointing second commissioner in the matter as there was no occasion for the same when there was already a report regarding the land in question submitted by the Commissioner.

(b) That application for appointment of Commissioner cannot be taken into consideration on mere application of a party. The learned trial Court, without application of mind and without considering all the aspects of the matter, has allowed the application seeking appointment of second commissioner, which is not permissible in the eye of law as it is settled legal proposition of law that Commissioner cannot be appointed for the purpose of co