Order

REPORATBLE

1. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India assailing the order dated 30.05.2026 passed by the learned Civil Judge, South City, Udaipur in Civil Original Suit No.171/2026, whereby the application preferred by respondent No.1 under Order XXXIX Rule 7 read with Section 151 CPC has been allowed and an Advocate Commissioner has been appointed to conduct local inspection of the suit property.

2. The petitioner has instituted a suit for permanent injunction in respect of an abadi plot forming part of Araji Nos.2441 and 2442 situated at Village Sisarma, Tehsil Girwa, District Udaipur, claiming possession on the strength of a patta dated 07.12.1975 allegedly issued in favour of his late father. Along with the suit, the petitioner sought temporary injunction alleging encroachment by respondent No.1 over a portion of the suit land. The learned Trial Court granted ad interim protection in favour of the petitioner on 26.05.2026.

2.1. Thereafter, respondent No.1 moved an application under Order XXXIX Rule 7 read with Section 151 CPC praying for appointment of a Commissioner to inspect the spot and place on record the existing physical features, measurements and boundaries of the disputed property. The petitioner opposed the application contending that the same was nothing but an attempt to collect evidence through the process of the Court. By the impugned order dated 30.05.2026, the learned Trial Court allowed the application and appointed an Advocate Commissioner to inspect the site in the presence of both parties and submit a report along with measurements and photographs, giving rise to the present writ petition.

3. Learned counsel for the petitioner submitted that the learned Trial Court has committed a manifest error in appointing a Commissioner to determine disputed questions relating to possession, identity, measurement, boundaries and alleged encroachment. It was contended that such matters are required to be established by the parties by leading independent evidence during trial and cannot be made the subject matter of a commission. It was, therefore, urged that the impugned order travels beyond the scope of Order XXXIX Rule 7 CPC and amounts to permitting respondent No.1 to collect evidence through the agency of the Court.

4. Per contra, learned counsel appearing for respondent No.1 supported the impugned order and submitted that the controversy between the parties essentially pertains to the existing physical condition, measurements and demarcation of the suit property. It was contended that the appointment of a Commissioner is intended only to enable the Court to ascertain the actual state of affairs at the spot so as to facilitate an effective adjudication of the pending application for temporary injunction and does not, in any manner, determine the rights of the parties.

5. I have considered the submissions advanced at the Bar and have perused the impugned order.

6. Perusal of the record reveals that while dealing with the application under Order XXXIX Rule 7 CPC, the learned Trial Court found that the controversy between the parties involved disputes relating to the existing physical condition of the suit property, including its measurements and boundaries, and that the actual position at the site was not sufficiently clear. It is in these circumstances that the learned Trial Court considered it appropriate to appoint an Advocate Commissioner for local inspection so that the existing factual position could be brought on record before deciding the application for temporary injunction.

6.1. The purpose of appointing a Commissioner under Order XXXIX Rule 7 CPC is not invariably to collect evidence on behalf of either party. The provision empowers the Court, where the circumstances of the case so warrant, to obtain an objective assessment of the existing condition of the property in dispute so as to facilita