General Public Merta Road vs Rafique @ Bundu Chhipa S/o Ishak Chhipa

The petitioners have laid challenge to an order dated

31.08.2017 passed by Civil Judge and Judicial Magistrate, Merta,

District Nagaur, whereby an application under Order XXXIX Rule 7

of the Code of Civil Procedure, seeking appointment of

Commissioner has been rejected by the Trial Court.

The facts in brief are that the petitioners - plaintiffs had filed

a suit for permanent injunction, seeking an order of restraint

against the defendant - respondent, who has been raising a

boundary wall, which would narrow down the way to the

petitioner''s house.

During the pendency of the suit, the petitioners submitted an

application dated 21.07.2017 under Order XXXIX Rule 7 of the

Code of Civil Procedure, seeking to appoint Commissioner. The

said application has been rejected by the Trial Court interalia

observing that the Court cannot appoint Commissioner, to collect

evidence for the plaintiff, while observing thus:-

"VERNACULAR MATTER OMITTED"

Mr. O.P. Sangwa, learned counsel for the petitioners

submitted that the impugned order whereby petitioners''

application for appointment of Commissioner has been rejected is

illegal and contrary to the facts involved in the present case. He

submitted that if the Commissioner is not appointed and the

factual position as obtaining on the date of filing the suit is not

taken on record, the defendant would continue his construction, as

a result whereof, the suit would be rendered infructuous and the

equity would change.

Having heard learned counsel for the petitioners and after

perusal of the pleadings of the parties, this Court is of the

considered opinion that learned Court below has committed no

error of law in refusing to appoint Commissioner. There is no

question or fact, required to be determined at the present stage,

warranting assistance of the Commissioner. The petitioners -

plaintiffs are required to project and prove their case by way of

leading evidence.

No interference in extraordinary supervisory jurisdiction of

this Court is called for. The writ petition is dismissed summarily.