Arun Bhansali, J. - (1.) THIS writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 15.02.2013 passed by the trial court, whereby, the application filed by the petitioner under Order XXVI, Rule 9 CPC read with Order XXXIX, Rule 7 CPC has been rejected.
(2.) THE plaintiff -respondent - Sunil Kumar filed a suit for permanent injunction alongwith application seeking temporary injunction regarding disputed way said to have been in use from the land of the petitioner. During pendency of the application seeking temporary injunction, an application under Order XXVI, Rule 9 CPC read with Order XXXIX, Rule 7 CPC was filed by the petitioner, inter alia, indicating that the way of plaintiff's land was from western side of his land and on the eastern side there did not exist any way and presently also there is no way and, therefore, Commissioner be appointed for the purpose of ascertaining factual position of the site; it was also claimed that the only way for reaching to plaintiff's land was from its western side and for that purpose it was necessary to seek Commissioner's report; it was also claimed that on all the four sides of petitioner's land, there is boundary wall, a part of which, has been demolished on the eastern side by the plaintiff after filing of the suit; it was, inter alia, claimed that from the factual position of the boundary wall, gate, way etc. at the site would make the position clear in the case and would facilitate reaching to a right conclusion for the court. The application was opposed by the plaintiff though no reply was filed.
(3.) THE trial court after hearing the parties, came to the conclusion that the matter pertains to existence of way and right to use the same and for that purpose the defendant himself can produce site map and, so far as the right of user, which of the way was the main way and factually which way was being used are all subject matter of evidence and Commissioner cannot be appointed for collecting evidence and further the matter has not reached the stage, wherein, the entire documentary and oral evidence has come on record, for appreciation of which, the factual position is to be brought on record and, consequently, dismissed the application.;