1. This writ petition filed under Article 227 of the Constitution challenges the order dated 5.10.2012, whereby the application of the petitioner/plaintiff preferred under Order 39 rule 7 read with section 151 CPC is rejected by the Court below. The plaintiff filed the suit for declaration and permanent injunction. During the pendency of the suit, the plaintiff filed an application under Order 39 rule 7 read with section 151 CPC (Annexure P-4). In this application it was prayed that there is a dispute about the actual position of the cemented boundary wall and regarding actual position of latrine and bathroom of plaintiff. To determine the correct facts, it is necessary that the property in question be investigated. It was, therefore, prayed that the Court may appoint an advocate or an employee of the Court for the purpose of investigation.

2. The prayer was opposed by the other side by filing reply (Annexure P-5). The Court below after considering the reply rejected the said application by impugned order.

3. Shri D.D.Bansal, learned counsel for the petitioner, submits that the impugned order is bad in law. By placing reliance on the language of Order 39 rule 7 CPC, it is contended that the Court below has failed to exercise its jurisdiction. The order of Court below is based on the assumption that there exists a boundary wall.

4. Shri P.C.Chandil, Advocate for the other side supported the order and submits that the application under Order 39 rule 7 CPC is rightly rejected by Court below.

5. I have heard the learned counsel for the parties and perused the record.

6. The Court below rejected the application on the ground that as per the averments of the application and the reply, it is clear that there exists a boundary wall. The existence of latrine and bathroom is also clear. The Court opined that at this stage no case is made out to invoke Order 39 rule 7 CPC.

7. It is apt to quote Order 39 rule 7 C.P.C. which reads as under :-

“7. Detention, preservation, inspection, etc., of subject-matter of suit.—(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,—

(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purpose aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule.”

8. The Order 39 can be traced in chapter on “Temporary Injunctions and Interlocutory Orders” and rule 7 thereof is placed under the subheading “Interlocutory Orders”. Order 26 under the Chapter on “Commissions” and rule 9 of Order 26 onwards come directly under the heading”Commissions to make Local Investigations”.

9. In the opinion of this Court, when a person is deputed under Order 26 rule 9 for ascertaining, collecting or elucidating facts in support of any matter in dispute and other things mentioned in the said rule, after proper scrutiny, enquiry, examination and sifting of the material, his report filed under Order 26 rule 9 is admitted in evidence and forms part of the record. The dictionary meaning of the word “investigation” is: --

“Act of examining; ascertainment of facts;sifting of materials; search for relevant data”.

The dictionary meaning of the word “inspect” is:—

“To examine; to look into; to look at narrowly, officially, or ceremonially.”

‘Inspection’ is “the act of inspecting or looking into matters; careful or official examination”.

The context in which word inspection is mentioned in rule 7, it is clear that the said provision has