Gordhan vs Jitendra Singh Gaur (2026:Rj-Jd:5658)
2026 Latest Caselaw 1234 Raj

Rajasthan High Court - Jodhpur

Gordhan vs Jitendra Singh Gaur (2026:Rj-Jd:5658) on 29 January, 2026

[2026:RJ-JD:5658]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Civil Writ Petition No. 5422/2024

Gordhan S/o Shri Moola Ram Khinchi, Aged About 61 Years,
Resident Of C/o M/s Mukesh Readymade, Dhanmandi, Gandhi
Chowk, Ladnu, District Nagaur.
                                                                         ----Petitioner
                                       Versus
Jitendra Singh Gaur S/o Shri Ram Singh Gaur, By Caste Rajput,
Resident Of Near Kaliji Ka Chowk, Ladnu, Tehsil Ladnu, District
Nagaur.
                                                                     ----Respondent


For Petitioner(s)            :     Mr. Vishal Sharma
For Respondent(s)            :     Mr. J.K. Bhaiya
                                   Mr. Mayank Bhaiya



              HON'BLE MR. JUSTICE SANJEET PUROHIT

Order

Reportable 29/01/2026

1. The present writ petition has been filed challenging the order

dated 05.10.2023 (Annexure- 10) passed by the Court of Learned

Additional District And Sessions Judge, Ladnun ("Learned Trial

Court"), rejecting the application of the petitioner-defendant under

Order 26 Rule 9 CPC, thereby refusing to appoint site

Commissioner.

2. Facts germane to present writ petition are that respondent-

plaintiff preferred a suit for eviction, recovery of due rent as well

as damages regarding damage caused to the wall and flooring of

premises in question.

2.1. It is mentioned in the plaint that the shop in question has

been given on rent by the plaintiff to the defendant, however, no

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (2 of 10) [CW-5422/2024]

rent has been paid after August, 2015 and the tenancy has been

terminated by way of notice on 08.01.2017. It is further averred

that in spite of the same, possession of the shop was not handed

over, therefore, the relief of eviction and recovery of rent was

prayed. There apart, damages to the tune of Rs. 5 lakhs was

claimed for the damage caused to wall and flooring of the shop in

question.

2.2. The suit was contested by the petitioner-defendant by filing

the written statement, denying the averments of plaint as well as

raising some preliminary objections, including the objection

regarding pecuniary jurisdiction of Learned Trial Court.

2.3. In view of the pleadings of the parties, Learned Trial Court

framed nine issues for adjudication, including issue No. 8

regarding pecuniary jurisdiction of Learned Trial Court.

2.4 The defendant at three stages filed application for

appointment of Commissioner. Last such application under Order

26 Rule 9 CPC was filed at the stage of defendant's evidence,

mentioning therein that plaintiff has claimed damages to the tune

of Rs. 5 lakhs for the damage caused to the wall and flooring of

the shop, however, the same has been claimed in exaggerated

manner just to increase the valuation of suit and to bring the suit

within the pecuniary jurisdiction of the Court of District Judge. It is

thus, stated that the appointment of Executing Engineer of PWD

department as site Commissioner is important so as to ascertain

the actual nature and quantum of damage caused to the premises

in question.

2.5. Said application was contested on behalf of plaintiff on the

ground that application of similar nature had already been

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (3 of 10) [CW-5422/2024]

dismissed by Learned Trial Court and the Commissioner cannot be

appointed for the purpose of collecting evidence for a particular

party.

3. Learned Trial Court, after considering the rival submissions

and also considering the law with regard to Order 26 Rule 9 CPC,

passed the order dated 05.10.2023, thereby dismissed

application of the petitioner-defendant filed under Order 26 Rule 9

CPC.

4. Challenging the said order dated 05.10.2023, the present

writ petition has been filed.

5. Arguing on behalf of petitioner, learned counsel Mr. Vishal

Sharma stated that the order impugned is against the very

purpose and spirit of Order 26 Rule 9 as the real assessment of

the extent and quantum of damage caused to property can only

be done by court appointed Commissioner so as to bring report

regarding the same on record.

5.1 It is argued that the provisions of Order 26 Rule 9 clearly

provide the power to Learned Trial Court to appoint Commissioner

for ascertaining market value, mesne profits or damages. In the

present case also, the appointment of Commissioner is sought for

ascertaining the damage, which is required to be ascertain the

pecuniary jurisdiction of Court concerned and, therefore, refusal of

such application is clearly erroneous and constitutes denial on the

part of Learned Trial Court to exercise the jurisdiction duly vested

in it.

5.2 Learned counsel for the petitioner relied upon judgments

passed in the cases of Shabbir Vs. Parwati Bai & Anr.

reported in (2012) 3 DNJ 1600; Rakamchand & Ors. Vs.

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (4 of 10) [CW-5422/2024]

Rukmani reported in 2021 Supreme (Raj) 2135 as well as the

judgment dated 18.05.2016 passed in the case of Narayan

Agarwal Vs. Kalyan Singh Jodha and Ors in S.B. Civil Writ

Petition No. 4708/2016.

6. Per contra, learned counsel for the respondent raised

preliminary objections, stating that application of similar nature

has already been decided/rejected by Learned Trial Court,

therefore, the filing of similar application on the part of petitioner

was not justified.

6.1 Learned counsel for the respondent argued that the

adjudication made by Learned Trial Court with regard to similar

application on earlier occasions operates as res-judicata against

the present application filed under Order 26 Rule 9 CPC.

6.2 Learned counsel for the respondent also stated that law is

well-settled that the appointment of Commissioner cannot be

ordered merely with a view to collecting evidence for particular

party.

6.3 Learned counsel for the respondent argued that the order

impugned is wholly justified as the application in question is filed

just to delay the eviction proceedings by the tenant. Learned

counsel for the respondent relied upon judgments passed in the

cases of Kailash Malpani Vs. Rent Tribunal, Jodhpur and

Others reported in (2015) 1 DNJ 291; R. Myilsamy Vs. S.

Myilsamy and Others, decided on 04.11.2015; Nazeer

Ahmad Vs. Prescribed Authority/ A.C.M.M. reported in

(2015) 2 ARC 702; Surinder Kumar Vs. Sanjeev Goyal

(2025) 3 RCR (Civil) 693.

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (5 of 10) [CW-5422/2024]

7. Heard learned counsel for the parties and perused the matter

available on record.

8. This Court considers it desirable to first deal with the

preliminary objection raised on behalf of learned counsel for the

respondent regarding the dismissal of application of similar nature

on an earlier occasion.

8.1 The record clearly shows that an application of similar nature

as filed on behalf of the respondent was rejected by Learned Trial

Court vide order dated 29.04.2017 and the said order was

challenged before this Court by way of S.B. Civil Writ Petition No.

5990/2017. Although the said writ petition was withdrawn by

learned counsel for the respondent, however, this Court had

granted liberty to file the application under Order 26 Rule 9 CPC at

an appropriate stage after filing of the written statement.

8.2 Once such liberty was granted by this Court, it was open for

the respondent to move the application at the appropriate stage.

Later on, again an application of similar nature was filed, however,

Learned Trial Court, vide its order dated 30.05.2018, has decided

the said application on the ground that such application is not

maintainable at the stage of plaintiff's evidence and it was kept

open for the defendant to move appropriate application at the

stage of defendant's evidence.

8.3 In this background, the present application under Order 26

Rule 9 CPC was filed by the petitioner. In view of the earlier orders

i.e. order dated 26.05.2017 passed by this Court as well as the

order dated 30.05.2018 passed by Learned Trial Court, granting

liberty to the petitioner-defendant to move application under

Order 26 Rule 9 at appropriate stage, it cannot be said that

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (6 of 10) [CW-5422/2024]

petitioner was estopped from filing the application in question.

Since the earlier order of rejection of appointment of

Commissioner has not been upheld by this Court and on the

second occasion, the application has not been decided on its

merits, therefore, the question of operation of principle of res-

judicata does not arise in this particular case.

9. So far as merits of the challenge is concerned, a perusal of

the application (Annexure-9) clearly indicates that the sole

purpose of appointing the Commissioner was to determine the

nature and extent of the damage, as well as the quantum of

damages, in connection with Issue No. 8 concerning the pecuniary

jurisdiction of the Learned Trial Court, the burden of proof of

which was placed upon the defendant. It is found that defendant-

petitioner in his written statement has stated that the same is not

to the extent of Rs. 5 lakhs.

9.1 This Court is of the considered opinion that the issue

pertaining to the nature, extent, and quantum of damage could

have been established by the defendant through its own evidence,

documents, photographs or other reasonable methods within its

own control. The defendant had full opportunity and within his

capability to investigate, collect and present necessary proof to

establish the said facts. However, it is apparent from the record

that no genuine effort was made by the defendant to discharge his

fundamental burden of proof, which lay squarely upon it. Instead,

from the very inception of the proceedings, the defendant

repeatedly approached the Court with applications seeking the

appointment of a Commissioner, evidently with the intention of

having the determination of said issue through Court

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (7 of 10) [CW-5422/2024]

Commissioner rather than taking steps to establish it

independently.

9.2 Upon careful examination, this Court finds that the question

of the extent and quantum of damage caused to the shop does

not require any specialized scientific, technical, or expert

knowledge that would necessitate the intervention of a Court

appointed Commissioner. Therefore, no justification was available

for appointment of Commissioner in this case, as the alleged

difficulty in proving the damage is neither exceptional nor beyond

the defendant's capacity.

9.3 A perusal of the provisions of Order 26 Rule 9 CPC shows

that the same provides for the power of the Court to issue

commission to such person as it deems fit to make investigation

on such aspect which, in spite of the evidence already led on

behalf of the parties, could not be established due to its peculiar

nature. The said provision does not grant a vested right in favour

of a party to get a Commissioner appointed. Order 26 Rule 9 is an

enabling provision empowering the Court to appoint a

Commissioner to aid the process of adjudication, however, the

same cannot be used by a party to collect evidence for discharge

of his burden, which can be done by the party concerned by

leading his independent evidence in support of his case.

9.4 The view expressed by this Court is supported by various

judgments referred above and relied upon by the respondents.

The scope and extent of Order XXVI Rule 9 of the Code of Civil

Procedure, as crystallized through various judicial

pronouncements, is well settled and unambiguous. The provision

provides discretionary power to the Civil Court to issue a

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (8 of 10) [CW-5422/2024]

commission for investigation even after both parties have led

evidence and discharged their initial burden of proving the issues

framed, provided the Court finds that certain facts or aspects, by

reason of their peculiar or technical nature, cannot be

satisfactorily ascertained without such assistance. The power

under Order XXVI Rule 9 is thus discretionary and is intended to

serve as an aid to the Court in effectively adjudicating the matter

before it, rather than as a tool for a party to fill lacunae in its case.

It cannot be invoked by a litigant to collect evidence on its behalf

or to discharge a burden that squarely lies upon it. Where a party

is capable of producing evidence through ordinary modes, it

cannot seek recourse to this provision merely for its own

convenience or without first establishing the foundational facts

through admissible evidence. The underlying object of Order XXVI

Rule 9 is to enable the Court to arrive at a just and proper

conclusion by clarifying matters which cannot be adequately

resolved on the basis of oral or documentary evidence alone, and

not to permit a roving or fishing inquiry at the instance of a party.

9.5 So far as the judgments relied upon by petitioner is

concerned, in the cases of Shabbirj Vs. Parwati Bai & Anr.

(Supra) and Rakamchand & Ors. Vs. Rukmani (Supra), the

dispute was regarding the exact location of disputed land, which

could only have been determined by revenue authorities and, in

those circumstances, the interference was exercised by this Court

to appoint a site Commissioner. So far as the judgment passed in

the case of Narayan Agarwal (Supra) is concerned, the issue

was whether the property in question was used for selling motor

spare parts or as a godown for goods, and thus the application

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (9 of 10) [CW-5422/2024]

under Order 39 Rule 7 was allowed for ascertaining the prima

facie status of the use of shop in question. The facts and stage of

the said cases are not akin to the peculiar facts of the present

case, hence, the same have no application in the facts and

circumstances of present case.

9.6 In the present case, the appointment of Commissioner is

sought in relation to issue No.8 i.e. issue of pecuniary jurisdiction.

Since the burden of proving the same was upon the defendant, it

was incumbent upon the defendant himself to establish the same

by leading its own evidence through various legally permissible

methods that are well within its reach. Instead of first discharging

this initial burden, the defendant has sought to invoke the

provisions of Order XXVI Rule 9 CPC with the object of collecting

evidence in support of its own case. Such an approach is

impermissible in law, as Order XXVI Rule 9 is not intended to be

used as a substitute for a party's obligation to prove its assertions

by independent evidence. Order 26 Rule 9 is meant to assist the

Court where it finds such assistance necessary for proper

adjudication. In this backdrop, the learned Trial Court has rightly

exercised its discretionary jurisdiction in refusing to issue a

commission. The power to appoint a Commissioner is vested solely

in the Court and depends upon its judicial satisfaction as to

whether such appointment is at all warranted in the facts and

circumstances of the case. A Commissioner cannot be appointed

merely to cater to the desire or convenience of a party or to

collect evidence on his behalf. The impugned order reflects a

proper and judicious exercise of discretion by the learned Trial

Court, thus warrants no interference.

(Uploaded on 31/01/2026 at 04:24:15 PM)

[2026:RJ-JD:5658] (10 of 10) [CW-5422/2024]

10. The scope of interference of this Court under Article 227 of

the Constitution of India is very limited. If the order is shown to

be passed by Court having no jurisdiction or its suffers from

manifest procedural impropriety or perversity or any error

apparent on the face of record is found, the interference can be

made by this Court. The interference by way of issuing a writ of

certiorari can be made to ensure that courts below act within the

bounds of their authority. The interference under Article 226

should be exercised sparingly, has been laid down in the case of

Shalini Shetty & Anr. vs. Ranjendra Shankar Patil (2010) 8

SCC 329 . There is no incongruity established on which the

interference can be made.

11. Thus, writ petition being devoid of merit fails and is hereby

dismissed.

12. All stay applications and pending applications, if any, hereby

stand disposed of.

(SANJEET PUROHIT),J 196-yagya/-

(Uploaded on 31/01/2026 at 04:24:15 PM)

Powered by TCPDF (www.tcpdf.org)