Issue of commission

Amitabha Gupta (Querist) 17 October 2010 This query is : Resolved
What is the purpose of issuing commission Under order order 39 r. 7. can an application under order 39 r.7 read with order 26 r.p read with section 151 cpc lay after an order of temporary injunction has been passed against the defendant. Here the dispute is pertaing the boudary and the allegation of the plaintiff is that the defendant has encroached an areea of 3'X 238' by constructing boundary wall. the court has restrained the defendant from raising height of the already constructed boundary wall. the defendant is saying that he has not encroached a single inch. therefore if he wants to file an application under order 39 r.4 cant he pray for an inspection under order 39 r 7.

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adv. rajeev ( rajoo ) (Expert) 17 October 2010
O39 r 7 is a)make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein;
b) For all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and
c) for all or any of the purposes aforesaid authorize samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
This application is maintainable because the scope is very limited in the case. It is to be ascertain whether defendant has encroached the property of the plaintiff or not? In such cases to know the real fact appointment of court commissioner u/o 26 r 9 is sufficient. If court commissioner is appointed it will be very easy to the court to ascertain the encroachment. Defendant cannot file an application to make an inspection u/o 39 r 7

Devajyoti Barman (Expert) 17 October 2010
After the disposal of the temporary injunction petition the Commissioner can not be appointed u/o 39 rule 7 of cpc. Then order 26 is the only option and the court can for the purpose of determining the real question in controversy can indeed appoint Commissioner and your case seem to be apt for such appointment.