The court upheld that a Commissioner cannot be appointed solely for the purpose of gathering evidence, stressing the evidential burden remains with the parties.

Order

23/07/2025

1. Both the writ petitions arise out of orders dated 08.11.2019, though passed separately, in two different suits being Civil Original Suit No.15/2019 (Devi Lal v. Govindam & Ors.) and Civil Original Suit No.14/2019 (Devi Lal v. Smt. Anju Devi & Ors.) both pending before the learned Civil Judge, Kuchaman City, whereby the applications filed by the petitioners-plaintiffs under Order XXXIX, Rule 7 of C.P.C. seeking appointment of a Commissioner have been rejected. Since, the issue raised in both the suits is common and pertaining to the same area and even the orders impugned in both the cases pertained to the decision upon the same applications and has been decided based upon the same reasoning and logic, both the petitions are being decided together.

2. Shorn of unnecessary details, the briefs facts, relevant for adjudication of the present case are that the petitioners-plaintiffs filed both the suits under Section 91 C.P.C. in Public Interest stating therein that on the right to way/road from Kuchaman City to Kuchaman, illegal constructions have been raised beyond the permission granted by the Municipal Council and the respondents/ defendants have damaged the right to way. It was thus, asserted that the illegal construction needs to be demolished. Along with the suits, temporary injunction applications under Order XXXIX, Rules 1 & 2 read with Section 151 C.P.C. seeking status quo over the right to way by the respondents-defendants were also filed.

3. During the pendency of temporary injunction applications, an applications under Order XXXIX Rule 7 of C.P.C. read with Section 151 (in both the cases) came to be filed by the petitioners- plaintiffs stating therein that for the purpose of determining the encroachment and for measurement of the right to way, it was essential to appoint a Commissioner. The respondents-defendants filed replies to the above-mentioned applications and stated that the right to way was impact and Commissioner cannot be appointed for the purpose of collection of evidence.

4. The learned Trial Court after having considered the arguments of both the sides on the applications filed by the petitioners-plaintiffs under Order XXXIX, Rule 7 read with Section 151 C.P.C., vide its order dated 08.11.2019 dismissed the applications and observed that the purpose of applications was for collection of evidence and, as far as the right to way and the permission which was granted to the respondents-defendants are concerned, the same is to be proved by evidence and, therefore, appointment of a Commissioner was not at all justified. Being aggrieved against the above-mentioned orders the present writ petitions have been filed.

5. The learned counsel for the petitioners, Mr. C.P. Soni, vehemently submits that since, the dispute was with regard to the constructions on the right to way, therefore, it was essential for appointment of Commissioner to find out as to whether the constructions were beyond the permission granted and for the above-mentioned purpose the provisions of under Order XXXIX Rule 7 C.P.C., are clear which, permit the Court to appoint a Commissioner for the purpose of preservation and inspection of the property.

6. The learned counsel for the petitioners further submits that the learned Trial Court without assigning any reasons has dismissed the applications, and therefore, the orders impugned deserve to be quashed and aside.

7. Per contra, Mr. Rajesh Parihar, the learned counsel appearing for the respondents-defendants, Municipal Board Kuchaman City, while supporting the orders impugned states that the Commissioner cannot be appoint