Hon'ble TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner is aggrieved against the order dated 31/8/2005 by which the petitioner's application under the heading "order 39 Rule 7 CPC" was dismissed by the Additional District Judge No. 2, Jodhpur. This Court has no hesitation in observing that the learned trial judge namely, Additional District Judge No. 2, Jodhpur either was not knowing the law on the subject of appointment of Commissioner or if he was knowing Law on the subject, then the position is much more grave. On an application for appointment of Commissioner, the learned trial judge recorded findings which are in para No. 3 of the impugned order. Para No. 3 of the impugned order reads as under :- ...[Vernacular Text Ommited]... For the convenience, the relevant portion in the impugned order has been underlined and numbers have been marked in the order so that the findings recorded by the trial judge in such proceedings may be clear. This is very unfortunate that the learned trial judge by exceeding his all jurisdiction and by breaking all the barriers of law after recording those findings as mentioned above in last observed that whatever has been observed on the points in the impugned order, they are only for the purpose of deciding the application under Order 39 Rule 7 CPC and it will not affect any other proceedings. This observation is only desperate effort of the learned Judge and to take shelter behind this observation. The findings appear to have been recorded purposefully. It appears and as observed above, the court below, while considering the application for appointment of Commissioner, could not have gone into all those facts which were mentioned and which were considered and on which, the findings have been recorded by the court below.
(3.) IT will be worthwhile to mention a few facts only which will show that under what circumstances, the impugned order was passed by the court below. Because of dispute between the parties, by the order of this Court dated 12. 9. 2003 in S. B. Civil Misc. Arbitration Application No. 20/2003, sole arbitrator was appointed who passed the final award on 18. 6. 2005. The said award was challenged by the petitioner by filing objection petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996' ). An application for interim injunction under Section 9 of the Act of 1996 was also submitted by the petitioner on which notices were issued to the respondents and on 20. 8. 2005, learned counsel for the respondent appeared and gave his consent that the interim order may be passed. Learned counsel for the respondent before the Trial Court stated that the respondents are ready to maintain status quo with respect to the subject property under the award. The Trial Court consequently passed the order directing to maintain the status quo with respect to the said property till the decision of the main proceedings obviously under Section 34 of the Act of 1996. On 22. 8. 2005, an application was submitted by the petitioner seeking appointment of Commissioner. The application is brief and copy of which is placed on record by the petitioner as Annexure-24. In this application, merely it is stated that the Court has passed the interim order on 20. 8. 2005 and the next date is 29. 8. 2005. Despite this interim order, the respondents are raising construction over the disputed property. The petitioner prayed that in this situation, the Commissioner may be appointed so that the actual site position may come on the record of the Court. The said application was replied by the respondent and it was stated that the notice was served upon the counsel for the respondent and the counsel for the respondent is not in a position to contract his client and in fact, the notice should have been served upon the respondent. It is submitted that the petitioner wants to create some evidence and for that purpose, he has moved application for appointment of the Commissioner. It is also stated that the petitioner has not disclosed how the position is being changed by the respondent. In absence of the particulars in the application, the respondent will not be able to give proper reply to the application filed by the petitioner. The thrust of contention was that the counsel for the respondent was not in position to contract his client and, therefore, he cannot file the reply. The Court did not appoint the Commissioner or reject the application of the petitioner forthwith on the ground of non-disclosure of facts in the application by the petitioner or on the ground that because of lack of particulars, the Commissioner cannot be appointed. The matter was adjourned and ultimately, on 29/8/2005, learned counsel for the respondent before the Trial Court submitted that reply filed by them on 22/8/2005 may be treated to be reply to the application filed by the petitioner under Order 39 Rule 7 CPC. On these facts, after hearing learned counsel for the parties, the court below passed the impugned order dated 31/8/2005. ;