MAHAVEER PRASAD JAIN Vs. CIVIL JUDGE & ANOTHER

JUDGEMENT

(1.) The present petition has been filed by the petitioner (original defendant) challenging the order dated 4.7.2011 passed by the Civil Judge (Junior Division), Sawai Madhopur in CMC (Contempt) No. 38/2011 appointing the Commissioner under Order 26 Rule 9 of CPC.

(2.) It appears that the present respondent no. 2 (original plaintiff) had filed the suit against the petitioner-defendant and also sought temporary injunction under Order 39 Rule 2 of CPC, which was granted by the trial court against the present petitioner. The respondent thereafter submitted an application under Order 39 Rule 2A alleging that inspite of injunction order dated 5.3.2011, the petitioner was raising construction in the disputed premises. The respondent also filed an application under Order 26 Rule 9 CPC seeking appointment of Commissioner. The said application has been granted by the trial court vide order dated 4.7.2011. Being aggrieved by the said order, the present petition has been filed by the petitioner under Article 227 of Constitution of India.

(3.) It has been submitted by the learned counsel for the petitioner that the Commissioner could not be appointed to collect the evidence and the order passed by the trial court is illegal. According to Mr. Raj Kamal Gaur, learned counsel for the petitioner whether the petitioner-defendant had committed any breach of injunction or not would be a matter of evidence and the Commissioner could not have been appointed to ascertain whether the breach of injunction was committed by the petitioner or not.