The court affirmed that trial courts have inherent discretion to appoint a Commissioner for local investigations to aid in resolving disputes, regardless of prior rulings on related applications.

ORDER

1. Petitioner (plaintiff in the court below) is aggrieved against an order dated 22.09.2023 (Annex. 8) passed by the learned District Judge, Sirohi vide which application Order 39 Rule 7 filed by the respondents/defendants, seeking appointment of Commissioner, was allowed.

2. Civil suit pending before the court below inter alia is for seeking cancellation of the sale deed dated December 30, 2021, alleging that same is based on the revoked power of attorney and other documents. An injunction restraining defendants/respondents herein from selling, mortgaging and/or leasing suit property has also been prayed for. In the written statement (Annexure. 4) to the suit, filed by defendants, the averments of the plaint have been denied.

2.1. Learned court below, vide an order dated September 22, 2023 (Annexure. 5) has granted a temporary injunction under Order 39 Rule 1 and 2 of the CPC, in favour of the petitioner/plaintiff and against the respondents/defendants.

2.2. Prior to passing of the aforesaid injunction order, respondents had filed an application dated August 17, 2022 (Annexure. 6) under Order 39 Rule 7 CPC, seeking appointment of a Commissioner for the inspection of the disputed property. In response, the petitioner submitted a reply dated August 27, 2022 (Annexure. 7), refuting certain facts in the application and objecting to the appointment of a Commissioner. The petitioner asserted that he is the owner of the suit property, and therefore, there was no necessity to appoint a Commissioner.

2.3. On the same day, i.e., on September 22, 2023, when vide a separate order application under order 39 rules 1 and 2 filed by plaintiff was allowed, the aforesaid second application under order 39 rule 7 filed by defendants was also allowed by the learned District Judge vide separate order impugned herein (Annexure. 8).

3. I have perused the file and heard the rival arguments of the learned counsels.

4. Learned counsel for the petitioner argues that the court below has committed an illegality by appointing a Commissioner at the instance of defendants, as it lacked the jurisdiction to pass an order under Order 39 Rule 7 after rendering decision on the application under Order 39 Rule 1 & 2 CPC. Especially when the same Court has already observed in the injunction order that there is a prima facie case in favor of the plaintiff.

4.1. He would further urge that lis in pending suit is qua false and forged document of the power of attorney, which was not in existence as on December 30, 2021. Suit is not for possession of the land; rather, it is for declaration and cancellation of the sale deed, which was registered by the Sub-Registrar on the basis of a forged power of attorney. According to the provisions of the Specific Relief Act also, there is no requirement for any inspection of the suit property. Hence, there was no requirement for the appointment of a Commissioner when the sale deed itself was fraudulently registered by the respondents. Setting aside the order appointing the Commissioner is thus prayed for.

5. Per Contra, learned counsel for the respondents defends the impugned order for the reasons mentioned therein. He states that the trial court is fully vested with jurisdiction thereof and has rightly allowed the application filed by the respondents under Order 39 Rule 7 CPC. The Commissioner is very much warranted and has thus been rightly appointed as per the law. Therefore, the impugned order does not call for any interference.

6. After hearing the competing contentions of learned counsel for the parties, I am of the view that, de-hors order 39 rule 7 ibid, the trial court even on its own volition, can exercise its discretion to appoint the Commissioner to make a local investigation for elucidating any matter in dispute. Reference may be had to the provision contained in Order 26 Rule 9 of the CPC. Though, no doubt, in the present case, Order 39 Rule 7 has been invoked at the instance of the respondents for the appointment of the Co