Vineet Kothari, J. - (1.) THIS writ petition is directed against the order dated 21.11.2008 whereby the learned appellate Court below has rejected the application under Order 39 Rule 7 C.P.C.
(2.) LEARNED Counsel for the plaintiff -petitioner submitted that in the suit for specific performance in relation to mine it was expedient of learned appellate Court to ascertain the latest position of the mine while deciding the application for grant of temporary injunction to the plaintiff. Learned appellate Court has however rejected the said application without assigning any cogent reason while relying on Rule 67 of General Rule (Civil) 1986 and decision of this Court in case of Dr. Atul Kumar v. Tarun Kumar, 1999 WLC (Raj.) UC 422. Learned Counsel for the petitioner -plaintiff relying on later decision of this Court in Trilokaram and Ors. v. Jetha Ram and Anr. in S.B. Civil Writ Petition No. 701/2010 submits that the purpose of Commissioner's report in present case is not to collect the evidence for supporting the case of plaintiff -appellant but to ascertain the latest position of the mine itself so that the suit property is preserved and maintained till the rights of the parties are decided in the trial.
(3.) LEARNED Counsel for the respondents opposes these submissions.;