Hon'ble SHARMA, J.—Respondent No. 1 is quite plainly a proforma party, hence, on the say of the learned counsel for the petitioner, the service of notice on the respondent No. 1 is dispensed with. Thus, service is complete.

2. With the consent of counsel for the parties, this petition is taken up on admission.

3. This petition has been filed challenging the order dated 28.4.2012 passed by the Additional District Judge, No.1, Sikar, Dismissing an application under O. 26 R. 9 of CPC filed by the petitioner-plaintiff (hereinafter plaintiff).

4. The petitioner-plaintiff (hereinafter plaintiff) filed a suit before the Trial Court for declaration, mandatory as also permanent injunction against the respondent-defendants (hereinafter the defendants). The substratum of the plaintiff's case was that a right of way allegedly existing, as detailed in the plaint be declared as such and the defendants be restrained from obstructing the use thereof by the plaintiff. In the suit, the plaintiff filed an application under Order 26 Rule 9 of CPC praying that a Commissioner be appointed for local inspection. The said application was opposed by the defendants stating that the issue of consideration of pre-existing right of way as alleged was a matter of evidence, the burden whereof was on the plaintiff and appointment of a Commissioner for collection of evidence on behalf of the plaintiff was impermissible in law.

5. On consideration of the application and taking into consideration the respective contentions, the learned Trial Court found that the appointment of Commissioner for local inspection for determining the question of the existence of a purported right of way was not a matter for which the powers of the Court under Order 26 Rule 9 CPC could be invoked. So holding, the application under Order 26 Rule 9 of CPC filed by the plaintiff was dismissed.

6. Heard the learned counsel for the parties and perused the petition including the impugned order.

7. Order 26 Rule 9 of CPC confers a discretion in the Trial Court for appointment of a Commissioner for local inspection inter alia for elucidation of the subject matter in respect of which the dispute has arisen before the Court for adjudication. Rule 67 of the General Rules (Civil), 1986 provides that in matters where burden is on the parties to bring in evidence in the suit i n support of their respective claims a Commissioner for carrying out local inspection ought not to be appointed. It is thus, evident that in the context of the aforesaid statutory provisions, the appointment of a Commissioner is for facilitating the Trial Court in the discharge of its duties of adjudicate where so warranted or dictated by the opaqueness of the subject matter of the dispute and not to facilitate bringing in of evidence at the instance of the parties before the Court. In my considered view, the issue of the allegedly pre-existing right of way as claimed by the plaintiff was a matter dependent upon evidence both documentary and oral to be lead before the Trial Court. The plaintiff could not by way of resort to Order 26 Rule 9 of CPC circumvent his duty in law to lead evidence in support of his case. In my considered opinion the Trial Court has rightly addressed the matter before it and refused the exercise its jurisdiction under Order 26 Rule 9 of CPC. In respect of discretionary orders-as an order under Order 26 Rule 9 of CPC, the Hon'ble Supreme Court in the case of Subodh Kumar Gupta & Ors. vs. Alpana Gupta & Ors. reported in (2005) 11 SCC 578 has stated that where a Trial Court passes a reasoned discretionary order in the course of trial, such an order is not liable to be interfered with in the exercise of powers of High Court u/Article 227 of the Constitution of India.

8. Consequently, I find no force in the petition. The petition is dismissed.

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