ONKAR SINGH Vs. RAGHUNATH SINGH

JUDGEMENT

(1.) The present writ petition is directed against the order dated 03.08.2019, passed by the learned Civil Judge and Judicial Magistrate, Jaitaran, District Pali (hereinafter referred to as "the Trial Court"?), vide which the Trial Court has appointed Commissioner for adjudication of temporary injunction application. Narrated briefly, facts of the case are that the petitioner-plaintiff had filed a suit for injunction alongwith an application for grant of temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. An ad-interim injunction in plaintiff's favour was granted by the Court. Before the temporary injunction application could be finally decided, the defendant moved an application dated 01.08.2019, under Order XXXIX Rule 7 of the Code of Civil Procedure and prayed that a Commissioner be appointed to apprise the factual position obtaining on the site. It was, interalia, pleaded in the application that the defendant has demolished his old construction; and that the facts as portrayed by the plaintiff are not correct and the same be ascertained through appointment of a Commissioner.

(2.) The plaintiff-present petitioner opposed the application for appointment of Commissioner by way of filing a reply dated 02.08.2019 and submitted that there is no necessity of appointing the Commissioner.

(3.) Learned Trial Court, by way of its order dated 03.08.2019, proceeded to appoint a Commissioner, interalia, observing that "a perusal of the pleadings and stand of rival parties, makes it clear that the basic dispute between the parties is with respect to measurement and no specific documentary evidence is available on record so as to reach to a correct conclusion"?. The Commissioner was asked to report about the status of the site with a mandate to furnish photographs of the site in question.