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[2026:RJ-JD:5658]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 5422/2024

Gordhan S/o Shri Moola Ram Khinchi, Aged About 61 Years,

Resident Of C/o M/s Mukesh Readymade, Dhanmandi, Gandhi

Chowk, Ladnu, District Nagaur.

----Petitioner

Versus

Jitendra Singh Gaur S/o Shri Ram Singh Gaur, By Caste Rajput,

Resident Of Near Kaliji Ka Chowk, Ladnu, Tehsil Ladnu, District

Nagaur.

----Respondent

For Petitioner(s) : Mr. Vishal Sharma

For Respondent(s) : Mr. J.K. Bhaiya

Mr. Mayank Bhaiya

HON'BLE MR. JUSTICE SANJEET PUROHIT

Order

Reportable

29/01/2026

1. The present writ petition has been filed challenging the order

dated 05.10.2023 (Annexure- 10) passed by the Court of Learned

Additional District And Sessions Judge, Ladnun (“Learned Trial

Court”), rejecting the application of the petitioner-defendant under

Order 26 Rule 9 CPC, thereby refusing to appoint site

Commissioner.

2. Facts germane to present writ petition are that respondent-

plaintiff preferred a suit for eviction, recovery of due rent as well

as damages regarding damage caused to the wall and flooring of

premises in question.

2.1. It is mentioned in the plaint that the shop in question has

been given on rent by the plaintiff to the defendant, however, no

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rent has been paid after August, 2015 and the tenancy has been

terminated by way of notice on 08.01.2017. It is further averred

that in spite of the same, possession of the shop was not handed

over, therefore, the relief of eviction and recovery of rent was

prayed. There apart, damages to the tune of Rs. 5 lakhs was

claimed for the damage caused to wall and flooring of the shop in

question.

2.2. The suit was contested by the petitioner-defendant by filing

the written statement, denying the averments of plaint as well as

raising some preliminary objections, including the objection

regarding pecuniary jurisdiction of Learned Trial Court.

2.3. In view of the pleadings of the parties, Learned Trial Court

framed nine issues for adjudication, including issue No. 8

regarding pecuniary jurisdiction of Learned Trial Court.

2.4 The defendant at three stages filed application for

appointment of Commissioner. Last such application under Order

26 Rule 9 CPC was filed at the stage of defendant’s evidence,

mentioning therein that plaintiff has claimed damages to the tune

of Rs. 5 lakhs for the damage caused to the wall and flooring of

the shop, however, the same has been claimed in exaggerated

manner just to increase the valuation of suit and to bring the suit

within the pecuniary jurisdiction of the Court of District Judge. It is

thus, stated that the appointment of Executing Engineer of PWD

department as site Commissioner is important so as to ascertain

the actual nature and quantum of damage caused to the premises

in question.

2.5. Said application was contested on behalf of plaintiff on the

ground that application of similar nature had already been

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dismissed by Learned Trial Court and the Commissioner cannot be

appointed for the purpose of collecting evidence for a particular

party.

3. Learned Trial Court, after considering the rival submissions

and also considering the law with regard to Order 26 Rule 9 CPC,

passed the order dated 05.10.2023, thereby dismissed

application of the petitioner-defendant filed under Order 26 Rule 9

CPC.

4. Challenging the said order dated 05.10.2023, the present

writ petition has been filed.

5. Arguing on behalf of petitioner, learned counsel Mr. Vishal

Sharma stated that the order impugned is against the very

purpose and spirit of Order 26 Rule 9 as the real assessment of

the extent and quantum of damage caused to property can only

be done by court appointed Commissioner so as to bring report

regarding the same on record.

5.1 It is argued that the provisions of Order 26 Rule 9 c