- (1.) A challenge in this petition has been made to the order dated 1st October, 2012 passed by the Civil Judge (Jr. Division), Deeg allowing an application filed by the plaintiff-respondent(hereinafter plaintiff) under Order 26 Rule 9 of CPC and appointing a Commissioner for local inspection of the property in dispute in the suit for permanent injunction.
(2.) COUNSEL for the petitioner-defendant (hereinafter defendant) submitted that the order impugned is an unreasoned and arbitrary order. He submits that discretionary orders albeit the prerogative of the courts should be reasoned orders. Counsel submits that the impugned order violates the requirement of Rule 67 of the General Rules (Civil), 1986 (hereinafter the Rules of 1986) in failing to detail the points on which the Commissioner had to report. He further submits that an earlier report also following a local inspection by the Commissioner appointed under Order 26 Rule 9 of CPC had been obtained on 1st October, 2000 in respect of which no objection had been filed and this aspect of the matter was also not considered by the trial court. Counsel for the plaintiff however, submits that an order under Order 26 Rule 9 of CPC is a discretionary order passed as the court was of the view that to facilitate the pronouncement of just and fair decision, the Commissioner's report was necessary. It is further submitted that this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India ought not to interfere with an interlocutory order not determining the rights of the praties as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar Patil [(2010) 8 SCC 329].
(3.) I have heard the learned counsel for the parties and perused the petition including the impugned order.;