Case Note & Summary
The dispute arose from a suit for permanent injunction filed by the petitioner in respect of an abadi plot forming part of Araji Nos.2441 and 2442 situated at Village Sisarma, Tehsil Girwa, District Udaipur. The petitioner claimed 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 trial court granted ad interim protection in favour of the petitioner on 26.05.2026. Thereafter, respondent No.1 moved an application under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908, seeking appointment of an Advocate Commissioner to inspect the spot and record existing physical features, measurements, and boundaries of the disputed property. The petitioner opposed the application contending that it was an attempt to collect evidence through the process of the court. By order dated 30.05.2026, the trial court allowed the application and appointed an Advocate Commissioner to inspect the site in the presence of both parties and submit a report with measurements and photographs. The petitioner challenged this order before the Rajasthan High Court by way of a writ petition under Articles 226 and 227 of the Constitution of India. The core legal issue was whether the trial court's order appointing an Advocate Commissioner under Order XXXIX Rule 7 read with Section 151 CPC was beyond its jurisdiction and amounted to permitting respondent No.1 to collect evidence through the court. The petitioner argued that disputed questions of possession, identity, measurement, boundaries, and alleged encroachment must be established by parties through independent evidence during trial and cannot be made the subject matter of a commission. Respondent No.1 supported the order, contending that the controversy essentially pertained to the existing physical condition, measurements, and demarcation of the suit property, and that the appointment was intended only to enable the court to ascertain the actual state of affairs to facilitate effective adjudication of the temporary injunction application without determining rights. The High Court considered the submissions and perused the impugned order. It observed that the trial court had found the actual position at the site was not sufficiently clear and that the controversy involved disputes relating to the existing physical condition, measurements, and boundaries. The High Court held that 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 to obtain an objective assessment to facilitate effective adjudication at the interlocutory stage. It further held that a Commissioner's report merely assists the court in appreciating the factual matrix and does not confer or extinguish any substantive right, nor does it relieve either party of its obligation to establish its case by leading admissible evidence during trial. The High Court noted that the application for temporary injunction under Order XXXIX Rules 1 and 2 CPC was yet to be finally decided, and obtaining an objective status report was within the trial court's discretion. It found no jurisdictional error, patent illegality, or material irregularity warranting interference under Article 227. Consequently, the High Court dismissed the writ petition and disposed of the stay application and all pending applications.
Headnote
A) Civil Procedure - Appointment of Advocate Commissioner for Local Inspection - Order XXXIX Rule 7, Section 151 and Order XXXIX Rules 1 and 2, Code of Civil Procedure, 1908 - Scope and Objective - Dispute involved existing physical condition, measurements, and boundaries of suit property pending temporary injunction application - Trial court appointed Advocate Commissioner to inspect site and submit report with measurements and photographs - Held that such appointment is within scope of Order XXXIX Rule 7, does not amount to collection of evidence for a party, and the report only assists court without determining or extinguishing substantive rights (Paras 6-6.2). B) Constitutional Law - Supervisory Jurisdiction under Article 227 - Article 227, Constitution of India - Judicial Review of Interlocutory Discretionary Order - High Court declined to interfere with trial court's order appointing commissioner as no jurisdictional error, patent illegality, or material irregularity was found - Held that writ petition dismissed and stay application and pending applications disposed of (Paras 6.3-5).
Issue of Consideration
Whether the order of the trial court appointing an Advocate Commissioner under Order XXXIX Rule 7 read with Section 151 CPC for local inspection of disputed property was beyond jurisdiction and amounted to collection of evidence, and whether the High Court should interfere under Articles 226 and 227 of the Constitution of India.
Final Decision
The writ petition was dismissed. The High Court found no infirmity in the trial court's order dated 30.05.2026 appointing an Advocate Commissioner. The stay application and all pending applications were disposed of.
Law Points
- Order XXXIX Rule 7 CPC empowers court to appoint a commissioner to obtain an objective assessment of existing physical features of property in dispute
- the commissioner's report assists the court in appreciating factual matrix and does not confer or extinguish substantive rights nor relieve parties from proving their case at trial
- appointment of commissioner at interlocutory stage is not collection of evidence on behalf of a party if intended to facilitate effective adjudication
- supervisory jurisdiction under Article 227 of Constitution of India is not to be exercised absent jurisdictional error
- patent illegality
- or material irregularity.
