ORDER
Shantanu Kemkar, J.
1. Through this petition filed under Article 227 of the Constitution of India the petitioners have challenged the order dated 28-9-2006 passed by the II Civil Judge Class II, Mauganj, District Rewa in Civil Suit No. 55-A/04 by which while deciding the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short ‘CPC’) he has issued a commission for investigating the facts as to (i), who is in possession of the suit land, (ii) who is raising construction on it or on the part of it and (iii) as to how many plots are situated on the disputed land.
2. Shortly, stated the petitioners/plaintiffs filed a suit for declaration and injunction against the respondents. In the said suit the petitioners also filed an application under Order 39 Rules 1 and 2 of the CPC for grant of temporary injunction praying therein that during the pendency of the suit the respondents/ defendants be restrained from interfering with their possession and enjoyment of the suit land and be also restrained from making construction or alienation of the suit property or any part thereof.
3. In the reply of the said application for temporary injunction the respondents/defendants denied the averments made by the petitioners.
4. The Trial Court after hearing the parties on the said application under Order 39 Rules 1 and 2 of the CPC and after perusing the affidavits and documents filed by the respective parties was of the view that the affidavits submitted by the contesting parties are contradictory to each other and the disputed facts are required to be investigated through Commissioner by issuing a commission. Having observed so, the Trial Court invoked the provision contained in Order 26 Rule 9 of the CPC and appointed Tehsildar Mauganj as Commissioner to investigate and submit its report in regard to the above referred facts.
5. The learned Senior Counsel for the petitioners submits that by appointing the Commissioner the Trial Court has ordered for collection of evidence which is beyond the scope of its jurisdiction under Order 26 Rule 9 of the CPC. He, therefore, contends that the impugned order may be quashed. On the other hand learned Counsel for the respondents supported the impugned order.
6. In case of Surya Dev Rai v. Ram Chander Rai and Ors. the Supreme Court has observed that the supervisory jurisdiction under Article 227 of the Constitution of India is to be exercised for keeping the Subordinate Courts within the bounds of their jurisdiction. When a Subordinate Court has assumed jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice is occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
7. Having regard to the aforesaid pronouncement of the Supreme Court and the legal position that the Court Commissioner cannot be appointed for collecting evidence empowering him to visit and inspect the suit tiled and to submit the report regarding actual position of the suit filed, the impugned order passed by the learned Trial Court is beyond the scope of Order 26 Rule 9 of CPC and is liable to be quashed. See Ashutosh Dubey and Anr. v. Tilak Grih Nirman Sahkari Samiti Maryadit, Bhopal and Anr. 2004 (2) M.P.H.T. 14 and Lakshman v. Ram Singh 1992 MPWN 255.
8. In view of the aforesaid facts and circumstances, the order of the Trial Court appointing the Commissioner to ascertain the facts that who is in possession of the suit land, who is raising construction and on which part is beyond the scope of its jurisdiction. The parties had already filed affidavits and relevant documents on the basis of which the Court itself was required to decide the application filed under Order 39 Rules 1 and 2 of the CPC and record its finding instead of shifting the job to the Commissioner.
9. Accordingly, the impugned order passed by the learned Trial Court is set aside. The Trial Court is directed to decide the application filed by the petitioners/plaintiffs under Order 39 Rules 1 and 2 of the CPC on the basis of pleadings, affidavits and documents filed by the parties. No orders as to cost.