Rajasthan HC Upholds Advocate Commissioner Appointment to Inspect Disputed Plot Before Deciding Temporary Injunction
Rajasthan High Court dismisses writ challenge to a trial court order appointing an Advocate Commissioner to inspect disputed abadi plot, holding such exercise aids effective interlocutory adjudication and does not amount to collecting evidence on a party's behalf.
The High Court of Judicature for Rajasthan, Jodhpur, on 9 July 2026 dismissed a writ petition filed by Roshan Lal challenging a trial court's decision to appoint an Advocate Commissioner for local inspection of a disputed abadi plot in Udaipur. Justice Farjand Ali, sitting singly, held that the Civil Judge's order was a proper exercise of discretion under Order 39 Rule 7 of the Code of Civil Procedure, 1908, aimed at placing the existing physical condition of the property before the court before it ruled on a pending application for temporary injunction. The court found no jurisdictional error, patent illegality, or material irregularity warranting interference under Article 227 of the Constitution of India.
The Dispute Before the High Court
Roshan Lal, a resident of Sajjan Nagar Chouraha, Udaipur, had filed Civil Original Suit No. 171/2026 before the Civil Judge, South City, Udaipur, seeking permanent injunction over an abadi plot forming part of Araji Nos. 2441 and 2442 at Village Sisarma, Tehsil Girwa, District Udaipur. His claim to possession rested on a patta dated 7 December 1975 allegedly issued in favour of his late father.
Along with the suit, he sought a temporary injunction, alleging that respondent No. 1, Veni Ram, had encroached upon a portion of the suit land. The trial court granted ad interim protection to Roshan Lal on 26 May 2026.
Four days later, Veni Ram moved an application under Order 39 Rule 7 read with Section 151 CPC, seeking appointment of a Commissioner to inspect the spot and document its physical features, measurements, and boundaries. Roshan Lal opposed the application, arguing it was a device to collect evidence through the court's machinery. The Civil Judge allowed the application on 30 May 2026 and directed an Advocate Commissioner to inspect the site in the presence of both parties and submit a report with measurements and photographs. Roshan Lal then approached the High Court under Articles 226 and 227 of the Constitution.
Petitioner's Challenge and Respondent's Defence
Before the High Court, Dr. Ashok Kumar Godara, appearing for Roshan Lal, submitted that the trial court had committed a manifest error. His argument was that questions of possession, identity, measurement, boundaries, and alleged encroachment are matters to be established by parties through independent evidence at trial. Allowing a Commissioner to go into those questions, he urged, exceeded the scope of Order 39 Rule 7 CPC and effectively permitted Veni Ram to collect evidence through the court's agency.
Counsel for Veni Ram defended the order on the basis that the dispute was essentially about the existing physical condition of the property. The Commissioner's appointment, it was contended, was only to help the court understand the actual state of affairs at the site so that it could decide the pending temporary injunction application more effectively, without prejudging the rights of either party.
How the Court Reasoned
Justice Farjand Ali traced the sequence of events. The trial court, while dealing with the Order 39 Rule 7 application, had found that the actual position at the site was not sufficiently clear, particularly with respect to measurements and boundaries. It was in those circumstances that the Commissioner was appointed, specifically to facilitate adjudication of the interlocutory application.
The High Court then addressed the scope of Order 39 Rule 7 CPC directly. It held that the provision does not invariably serve to collect evidence on behalf of either party. The court stated that the provision “empowers the Court, where the circumstances of the case so warrant, to obtain an objective assessment” of a property's existing condition so as to facilitate effective adjudication at the interlocutory stage. A Commissioner's report, the court explained, merely assists the court in appreciating the factual matrix; it neither confers nor extinguishes any substantive right, and it does not relieve either party of its obligation to establish its case by leading admissible evidence at trial.
On the specific facts, the application under Order 39 Rules 1 and 2 CPC was still pending final decision. The court noted that if the trial court considered a status report on the property's physical features necessary for effective consideration of the temporary injunction prayer, “such exercise cannot be said to be either beyond the ambit of Order XXXIX Rule 7 CPC or contrary to any settled principle of law.”
Justice Ali further found that the trial court's discretion was founded on relevant considerations and was neither arbitrary nor capricious. The court declined to find any jurisdictional error that would justify exercise of its supervisory jurisdiction under Article 227.
Outcome
The writ petition was dismissed in its entirety. The High Court found no infirmity in the order dated 30 May 2026 passed by the Civil Judge, South City, Udaipur. The stay application and all other pending applications were also disposed of.