The appointment of a Commissioner under Order XXXIX Rule 7 of CPC is discretionary and not a matter of right; parties must prove their own case without court assistance in evidence collection.

ORDER :

1. By way of present writ petition, the petitioner has challenged the order dated 21.02.2025, passed by the learned Board of Revenue, Ajmer affirming the order dated 19.11.2024 passed by the Assistant District Collector, Sanchore, in Revenue Suit No.56/2023, whereby his application under Order XXXIX Rule 7 of theCode of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) has been rejected.

2. Briefly narrated, facts appertain are that the petitioner has filed a revenue suit for declaration of khatedari rights and permanent injunction under sections 88 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the ‘Act of 1955’) with an assertion that the respondent-defendents are likely to dispossess him from the property in question.

3. Alongwith the suit aforesaid, the petitioner had also filed an application for temporary injunction under section 212 of the Act of 1955. During the pendency of application for temporary injunction, the petitioner moved an application under Order XXXIX Rule 7 of the CPC and prayed that a Commissioner be appointed to give a site report so as to ascertain the factual position in relation to possession of subject land.

4. The aforesaid application under Order XXXIX Rule 7 of the CPC has been rejected on 19.11.2024 by observing that the Court cannot appoint a Commissioner to collect the evidence in relation to possession for the parties.

5. Feeling aggrieved by the order dated 19.11.2024, the petitioner preferred a revision being Revision Petition No.8628/2024, which came to be rejected by the Board of Revenue on 21.02.2025 by observing thus:-

6. Learned counsel for the petitioner argued that having regard to the facts and circumstances of the case and considering petitioner’s basic plea that the respondent-defendents are likely to dispossess him, it was imperative upon the trial Court to have accepted petitioner’s application so that possession by either of the parties over the subject land could be ascertained.

7. He further submitted that the petitioner has lodged an FIR under section 107 of Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C’) apprehending his forceful dispossession by the respondents and therefore, the trial Court ought to have appointed a Commissioner.

8. It was also argued by Mr. Buch that the scope of the provisions under Order XXVI Rule 9 of CPC is entirely different than the provisions contained in Order XXXIX Rule 7 of CPC and the principle that the Court should not appoint a Commissioner to collect evidence of possession for the parties is applicable only qua the application filed under Order XXVI Rule 9 of CPC and not qua application filed under Order XXXIX Rule 7 of CPC.

9. In support of his contention aforesaid, learned counsel relied upon judgments of this Court as well as of Delhi High Court, which are noted hereinfra:-

(i) Ranjeet & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1191/2014), decided on 25.04.2016.

(ii) Ravindra Nath & Ors. Vs. Piyush Kumar (S.B. Civil Writ Petition No.5280/2019), decided on 03.07.2019.

(iii) Rajkumar & Anr. Vs. Narendra Kumar Kansliwal (S.B. Civil Writ Petition No.8792/2013), decided on 15.07.2013.

(iv) Indian Sugar Exim Corporation Ltd. Vs. Subhash Chand Kohli & Ors. (RSA No.136/2004), decided on 12.12.2007.

10. Heard.

11. According to this Court, the expression used in Order XXVI Rule 9 of CPC may be phrasally different than the language used in Order XXXIX Rule 7 of CPC but in substance both are same.

12. The requirement and purpose of appointment of Commissioner for detention, preservation or inspection of subject-matter of the suit or for deciding the suit finally under Order XXXIX Rule 7 vis-a-vis purpose of appointment of Commissioner under Order XXVI Rule 9 for the purpose of making local investigation is same.

13. The Commissioner is appointed for the purpose of aiding/ facilitating the Court so as to collect the information and perform specific tasks which are crucial in