Rajasthan High Court – Jaipur
Urn: Cw / 34102U / 2025Smt. Sita Devi W/O … vs Firm M/S. Vinod Textiles … on 22 April, 2026
[2026:RJ-JP:16919]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15080/2025
Smt. Sita Devi W/o Late Sh. Purushottamdas Khetan, Aged
About 85 Years, R/o B-21, Prabhu Marg, Tilak Nagar, Jaipur As
Partner Of Firm M/s. Vinod Textiles, B-56, Yash Path, Prabhu
Marg, Tilak Nagar, Jaipur.
----Petitioner
Versus
1 Firm M/s. Vinod Textiles, Through Partner Sh. Hariprasad
Khetan R/o B-56, Yash Path, Prabhu Marg, Tilak Nagar,
Jaipur
2 Sh. Hariprasad Khetan S/o Sh. Govindram Khetan, R/o B-
56, Yash Path, Prabhu Marg, Tilak Nagar, Jaipur
3 Sh. Mahesh Khetan S/o Sh. Govindram Khetan, R/o B-56,
Yash Path, Prabhu Marg, Tilak Nagar, Jaipur
4 Sh. Devidutt Khetan, S/o Sh. Govindram Khetan, R/o B-
56, Yash Path, Prabhu Marg, Tilak Nagar, Jaipur.
----Respondents
For Petitioner(s) : Mr. Ankit Popli
Mr. Vinay Patni
Mr. Arnav Sharma
For Respondent(s) : Mr. MM Ranjan, Sr. Adv. with
Mr. Rohan Agrawal, and
Mr. Yashvardhan Tolani
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment
Reportable
Date of hearing and conclusion of arguments 10.04.2026
Date on which the judgment was reserved 10.04.2026
Whether the full judgment or only the operative Full Judgment
part is pronounced
Date of pronouncement 22.04.2026
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1. The present civil writ petition has been filed assailing the
order dated 22.10.2024, passed by learned Additional District and
Session Judge, No. 6, Jaipur Metropolitan-II, in Civil Suit No.
47/2020 (CIS No. 42925/2014), whereby the application filed by
the petitioner under Order 26 Rule 9 of Code of Civil Procedure,
1908 (herein after referred to as 'CPC') was dismissed.
2. The brief facts giving rise to the present writ petition are that
the plaintiff-petitioner filed a suit for rendition of accounts,
declaration and permanent injunction contending therein that she
was inducted as a partner in the respondent firm, a registered
partnership firm bearing Registration No. 1615/64, and held 25%
share as per records of the Registrar of Firms. It was further
stated that another respondent was inducted as a partner in 1980,
and as per subsequent registration records obtained in 2025, the
petitioner continues to be shown as an existing partner.
2.1 The petitioner was repeatedly denied access to the firm's
financial records, including balance sheets, accounts, and profit
and loss statements, despite several requests, thereby depriving
her of information relating to her alleged share in the firm's assets
and profits. It was further alleged that the respondents wrongfully
claimed that she had retired from the partnership on the basis of a
forged retirement deed dated 01.04.1994, bearing allegedly
forged signatures, which, according to a private forensic
examination, were not of the petitioner.
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2.2 It was also the petitioner's case that the firm owns substantial
immovable properties situated at Sanganer, Jaipur, measuring
approximately 5000 sq. yards and 2000 sq. yards.
2.3 During the trial, the petitioner moved an application under
Order 26 Rule 9 CPC seeking appointment of a commissioner for
local investigation to ascertain the nature, ownership, and
valuation of the firm's movable and immovable assets, on the
ground that records pertaining to title were old, incomplete, and
not traceable and for proper adjudication of the dispute relating to
accounts and partnership rights, are required to be acquired
through commissioner. It was submitted that the application was
filed after completion of the petitioner's evidence, at a stage when
defendant evidence was being recorded, and was not intended to
fill lacunae.
2.4 After hearing both the parties, the learned trial Court
dismissed the said application vide order dated 22.10.2024.
3. Aggrieved by the same, the present writ petition has been
preferred by the plaintiff-petitioner.
4. Learned counsel for the petitioner submitted that the
impugned order dated 22.10.2024 passed by the learned trial
Court is arbitrary, unjust, and unsustainable in law as it suffers
from non-consideration of material facts on record.
4.1 Learned counsel argued that the discretion under Order 26
Rule 9 CPC, though judicial, must be exercised to advance the
purpose of "elucidating" the matter in dispute, and ordinarily a
commissioner ought to be appointed where it assists in effective
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adjudication unless there are cogent reasons such as malafide
intent or undue delay, which are absent in the present case.
4.2 He further submitted that the learned trial Court failed to
appreciate that the application was necessitated due to inability to
obtain old and untraceable records relating to the firm's
immovable properties and accounts, and was not intended to fill
lacunae in evidence but to clarify the nature, extent, and valuation
of the assets of the respondent firm.
4.3 Learned counsel for the petitioner further submitted that the
petitioner, an admitted partner of the respondent partnership firm
since 1976 holding 25% share, has been unlawfully shown to have
retired on the basis of a forged and fabricated retirement deed
dated 01.04.1994, which is disputed on the ground of forged
signatures and is supported by a forensic opinion.
4.4 Learned counsel for the petitioner further submitted that no
statutory procedure under Sections 32 and 72 of the Indian
Partnership Act, 1932 regarding public notice of retirement was
ever followed, thereby strengthening the case that she continues
to be a partner in the firm. It was also alleged that the
respondents have failed to maintain transparency in accounts and
have denied access to balance sheets, profit and loss statements,
and other financial records, thereby necessitating judicial
intervention for appointment of a local commissioner.
4.5 Learned counsel for the petitioner contended that there exist
serious disputes regarding ownership and nature of immovable
properties situated at Sanganer, Jaipur measuring approximately
5000 sq. yards and 2000 sq. yards, wherein contradictory stands
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have been taken by the respondents, including claims of tenancy
without production of any rent agreement or supporting
documents. He submitted that admissions made in earlier
proceedings and cross-examinations indicate that the firm owns or
controls the said properties, thereby making local investigation
essential for proper adjudication of the dispute.
4.6 Learned counsel for the petitioner also urged that the trial
Court has erroneously ignored material admissions,
inconsistencies in the defense, and relevant circumstances, and
has wrongly concluded that the application was filed to delay
proceedings. The impugned order is stated to be cryptic, non-
speaking, and based on misinterpretation of law as well as facts,
resulting in failure to exercise jurisdiction vested under Order 26
Rule 9 CPC. Accordingly, he prayed that the impugned order dated
22.10.2024 be quashed and set aside.
4.7 Learned counsel for the petitioner has placed reliance upon
the following judgments to advance his arguments :
(i) M.P. Rajya Tilhan Utpadak Sahakari Sangh
Maryadit, Pachama, District-Sehore & Ors. vs. Modi
Transport Service; (2022) 14 SCC 345.
(ii) New Meena Sahkari Awas Samiti Ltd. Lko Thru
Its President vs Additional District Judge, Ct. No. 2
Lko & Ors.; 2016: AHC-LKO:17161. {Allahabad High
Court}.
(iii) Sri Shadaksharappa vs Kumari Vijaylaxmi &
Ors. in W.P. No. 201274/2022 (GM-CPC) decided on
24.01.2023. {Karnataka High Court}
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(iv) Shanti Lal & Anr. vs Sh. Jhagannath & Ors. in
S.B. Civil Writ Petition no. 805/2025, decided on
14.07.2025. {Rajasthan High Court}
5. Per Contra, learned counsel for the respondents submitted
that defendants-respondents has produced a copy of a notice
issued by the Municipal Corporation to Sh. Sudhir Jain and Sh.
Sanjay Jain, the owners of the property leased to M/s Vinod
Textiles, clearly indicating that the Municipal Authorities recognize
M/s Vinod Textiles as the tenant of the disputed premises. This
fact directly contradicts the allegations of plaintiff that the
property is of the Firm, thereby establishing that the petitioner's
facts are incorrect and unfounded.
5.1 Learned counsel for the respondents further submitted that
the Municipal Corporation Greater's Bill for the year 2024-2025,
which clearly shows that Sh. Sudhir Kumar Jain has paid the
property tax, further substantiating the ownership and tax liability
in his name. Additionally, M/s Vinod Textiles has filed an
application before the learned Rent Tribunal, and subsequently
thereto, both Sh. Sudhir Jain and Sh. Sanjay Jain have filed their
replies, and the defendants have submitted a counter-reply,
demonstrating the ongoing legal proceedings and the recognition
of M/s Viond Textiles as the lawful tenant of the propery and not
the owner of the property.
5.2 Learned counsel for the respondents submits that the
petitioner is resorting to delaying tactics rather than raising
genuine issues. This conduct appears to be an attempt to protract
the proceedings unnecessarily.
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5.3 Learned counsel for the respondents further contended that
the application appears to be motivated to collect evidence on
unfounded facts and false assertions, which do not warrant
interference by this Hon'ble Court, especially when substantial
facts and documentary evidence are available on record
establishing the rightful ownership and tenancy.
5.4 Consequently, the learned counsel for the respondents
prayed that the present writ petition be dismissed and the
impugned order be upheld in the interest of justice.
6. Heard learned counsel for both the parties and perused the
material available on record.
7. For the sake of reference, Order 26 Rule 9 CPC is reproduced
hereunder:
“Commissions to make local investigations-In
any suit in which the court deems a local investigation
to be requisite or proper for the purpose of elucidating
any matter in dispute, or of ascertaining the market-
value of any property, or the amount of any mesne
profits or damages or annual net profits, the court
may issue a commission to such person as it thinks fit
directing him to make such investigation and to report
thereon to the court:
Provided that, where the State Government has made
rules as to the persons to whom such commission
shall be issued, the court shall be bound by such
rules.”
8. A perusal of the aforesaid provision makes it evident that a
Local Commissioner may be appointed for the purpose of
elucidating any matter in dispute, or for ascertaining the market
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value of any property, or determining the amount of mesne
profits, damages, or annual net profits. However, the expression
“elucidating any matter in dispute” does not extend to the
collection of evidence. The Court, while exercising powers under
Order 26 Rule 9 of the Code of Civil Procedure, cannot delegate its
adjudicatory function to a Local Commissioner.
9. For the sake of reference, para H of the writ petition is
reproduced hereunder:-
“H. Looking to the said overall circumstances and
the factual matrix, as the Petitioner-Plaintiff in order
to acquire and ascertain the details/ descriptions of
the movable and immovable properties including
other assets and its valuation thereof, filed an
application under Order 26 Rule 9 of the Code of Civil
Procedure, 1908, seeking the Ld. Court’s indulgence
in issuing a ‘commission for elucidating the matter in
controversy and further analyzing the usage and
nature of the lands, which formed a core issue in the
entire dispute’. Copy of the application under Order
26 Rule 9 of Code of Civil Procedure, 1908 is
annexed herewith and ‘marked as Annexure-10.”
10. This Court is of the firm opinion that the above assertion
itself discloses the intent and purpose for the appointment of the
Commissioner. A reading of the above makes it clear that the
petitioner intends to obtain details of the properties of the firm.
Such an intent amounts to nothing but a roving inquiry, which
cannot be permitted through the appointment of a Commissioner.
The fact of ownership must be proved by the parties through their
own evidence. The appointment of a Commissioner cannot be
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made for the purpose of collecting evidence on behalf of any party
to the litigation.
11. The above observation of this court is fortified by Rule 67 of
the General Rules (Civil), 1986 which provides as under:-
“67. Particulars to be given in the order for local
investigation
When issuing a commission for making a local
investigation under Order XXVI, Rule 9, the court shall
define the points on which the Commissioner has to
report. No point which can conveniently and ought to
be substantiated by the parties by evidence at the trial
shall be referred to the Commissioner.”
12. In a catena of decisions the Hon’ble Apex Court along with
High Courts, have consistently held that the allowing or rejection
of an application under Order 26 Rule 9 CPC lies within the sound
judicial discretion of the Trial Court. It is incumbent upon the Trial
Court to determine whether the appointment of a Commissioner is
necessary in the facts and circumstances of the case. Interference
with such discretion is unwarranted unless it is demonstrated that
there has been a manifest failure of justice or that irreparable
prejudice has been caused to the aggrieved party.
12.1 In the case of Padam Sen and another, Appellants
Versus The State of U.P.; 1961 AIR (SC) 218, the Hon’ble Apex
Court has held that:-
“10. The defendants had no rights to these account
books. They could not lay any claim to them. They
applied for the seizure of these books because they
apprehended that the plaintiff might make such
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[2026:RJ-JP:16919] (10 of 17) [CW-15080/2025]against the case they were setting up in Court. The
defendants request really amounted to the Court s
collecting documentary evidence which the
defendants considered to be in their favour at that
point of time. It is no business of the Court to collect
evidence for a party or even to protect the rival party
from the evil consequences of making forged entries
in those account books. If the plaintiff does forge
entries and uses forged entries and evidence in the
case, the defendants would have ample opportunity
to dispute those entries and to prove them forgeries.
11. We are therefore of opinion that the Additional
Munsif had no inherent power to pass the order
appointing a Commissioner to seize the plaintiff s
account books. The order appointing Sri Raghubir
Pershad as Commissioner for this purpose was
therefore an order passed without jurisdiction and
was therefore a null and void order.”
(Emphasis supplied)
12.2 In the case of Ashutosh Dubey. vs Tilak Grih Nirman
Sahakari Samiti Maryadit; 2004 3 MPLJ 213, the High Court of
Madhya Pradesh has observed that:-
“( 5. ) …..Apart from this the scope of Order 26 Rule
9, CPC is to ascertain the matter in dispute, market
value of any property, mesne profit or damages etc.
But issuing of commission for investigating the fact
that which of the party is in possession of the
property is beyond the scope of Order 26 Rule 9,
CPC. This question has to be decided by the Court
after adducing the evidence by the parties. The Court
has to record findings in this regard and the aforesaid
job of the Court can not be shifted to the
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[2026:RJ-JP:16919] (11 of 17) [CW-15080/2025]has exceeded his jurisdiction in issuing such a
commission ascertaining the fact that which party is
in possession of the property.
( 6. ) SO far as the decision of the Apex Court in the
case of Surya Dev Rai v. Ram Chander Rai and Single
Bench judgment in Mangilal v. Gourishankar (supra)
is concerned, the facts of the aforesaid case are
entirely different. The Apex Court in Surya Dev Rai v.
Ram Chander Rais case (supra) considering the scope
of Article 227 of the Constitution of India held in Para
38 is as under:-
“38. (3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross errors of
jurisdiction, i. e. , when a subordinate Court is found
to have acted (i) without jurisdiction by assuming
jurisdiction where there exists none, or (ii) in excess
of its jurisdiction by overstepping or crossing the
limits of jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure or acting
in violation of principles of natural justice where
there is no procedure specified, and there by
occasioning failure of justice. (4) Supervisory
jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate Courts within
the bounds of their jurisdiction. When a subordinate
Court has assumed a 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 has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct
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[2026:RJ-JP:16919] (12 of 17) [CW-15080/2025]requirements are satisfied :– (i) the error is
manifest and apparent on the fact of the
proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law,
and (ii) a grave injustice or gross failure of justice
has occasioned thereby. Considering the aforesaid,
it is apparent that the order passed by the Courts
below is without jurisdiction and the Court below
has assumed jurisdiction which was not vested in it.
Once the application under Order 26 Rule 9, CPC
was rejected by the Trial Court on merits, there was
no occasion for the Trial Court for re-consideration
of the aforesaid application on similar facts. Apart
from this, it is settled law that no such commission
may be issued for collecting the evidence in the
case. If the aforesaid order allowed to remain in
existence it will cause serious injustice to the other
side. This Court in Laxman v. Ramsingh, Civil
Revision No. 18 of 1982, decided on 24-2-1982
(1992 MPWN 255) has considered similar question
held:-
“the prayer for appointment of a Commissioner
was made on the ground that the
Commissioner would be able to see on the spot
the crop which is standing on the suit lands.
This according to the defendant will bring out
the truth of his case as according to him it was
gram crop as sown by the applicant which was
standing on it. Learned Counsel for the non-
applicant plaintiff had submitted that the
appointment of Commissioner as being sought
on certain assumptions. He had in this
connection pointed out certain pleadings in that
behalf. The object of local investigation is not
so much to collect evidence for either of the(Uploaded on 02/05/2026 at 11:38:50 AM)
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[2026:RJ-JP:16919] (13 of 17) [CW-15080/2025]parties. It is within the discretion of the Court
to order a local investigation or reject the
prayer. The Court below has exercised that
discretion by rejecting that application. In view
of the circumstances, it can not be said that the
Court has committed any error on jurisdiction
while rejecting the application in that behalf. ”
(7.) SIMILAR position is here, in this case the prayer
for collecting of the evidence on spot has been
sought through appointment of the commission
which is beyond the scope of Order 26 Rule 9, CPC.”
(Emphasis supplied)
12.3 In the case of Mahaveer Prasad vs. The Addl. District
Judge, No. 1; 2012 Supreme (Raj) 1059, a Co-ordinate Bench of
this Court, has observed that:-
“7. Order 26 Rule 9 of CPC confers a discretion in
the Trial Court for appointment of a Commissioner
for local inspection inter alia for elucidation of the
subject matter in respect of which the dispute has
arisen before the Court for adjudication. Rule 67 of
the General Rules (Civil), 1986 provides that in
matters where burden is on the parties to bring in
evidence in the suit in support of their respective
claims a Commissioner for carrying out local
inspection ought not to be appointed. It is thus,
evident that in the context of the aforesaid
statutory provisions, the appointment of a
Commissioner is for facilitating the Trial Court in
the discharge of its duties of adjudicate where so
warranted or dictated by the opaqueness of the
subject matter of the dispute and not to facilitate
bringing in of evidence at the instance of the
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[2026:RJ-JP:16919] (14 of 17) [CW-15080/2025]the issue of the allegedly pre-existing right of way
as claimed by the plaintiff was a matter dependent
upon evidence both documentary and oral to be
lead before the Trial Court. The plaintiff could not
by way of resort to Order 26 Rule 9 of CPC
circumvent his duty in law to lead evidence in
support of his case. In my considered opinion the
Trial Court has rightly addressed the matter before
it and refused the exercise its jurisdiction under
Order 26 Rule 9 of CPC. In respect of discretionary
orders-as an order under Order 26 Rule 9 of CPC,
the Hon’ble Supreme Court in the case of Subodh
Kumar Gupta & Ors. vs. Alpana Gupta & Ors.
reported in (2005) 11 SCC 578 has stated that
where a Trial Court passes a reasoned
discretionary order in the course of trial, such an
order is not liable to be interfered with in the
exercise of powers of High Court u/Article 227 of
the Constitution of India.”
12.4 In the case of Vimla Sharma vs Registrar, Cooperative
Societies Raj; 1997 4 RCR(Civ) 161, a Co-ordinate Bench of this
Court has observed that Rule 67 of the Manual of Civil Court
Rules, 1986, which governs the issuance of a commission for local
investigation under Order 26 Rule 9 CPC, mandates that the Court
must clearly define the points on which the Commissioner is
required to report, and further stipulates that no matter which can
conveniently and ought to be proved by the parties through
evidence at trial shall be referred to the Commissioner.
12.5 In the case of Union Of India (Uoi) And Anr. vs Kripal
Industries Raisingh Nagar; AIR 1998 Raj 224, a Co-ordinate
Bench of this Court has observed as under :
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[2026:RJ-JP:16919] (15 of 17) [CW-15080/2025]“17. A perusal of the provisions contained in Rules
9 and 10 and Order 26 goes to show that the trial
Court is vested with the discretion to appoint
Commissioner but such discretion should not be
exercised where the point which is required to be
referred to the Commissioner can conveniently be
substantiated by the parties by evidence at the
trial. Rule 67 of the General Rules (Civil) 1986,
explains the scope of Order 26, Rule 9, CPC.”
13. This Court is of the firm opinion that the petition filed by the
plaintiff-petitioner seeking appointment of a Commissioner under
Order 26 Rule 9 CPC to visit the property and determine whether
the immovable property in question is owned by M/s Vinod Textiles
or is rented by the firm cannot be allowed.
14. This Court finds that in the present case, the core issue
before the Court involves the renditions of accounts of a firm. The
ownership or tenancy of a particular property, which is a matter of
fact are required to be proved through their respective evidence.
The plaintiff-petitioner’s application for appointment of a
Commissioner to determine ownership or tenancy is not an issue
to be determined by the commissioner , as the parties have the
means to establish their claims through documentary evidence
and testimony. The Court emphasizes that the appointment of a
Commissioner solely for the purpose of determining ownership or
tenancy would be an unnecessary exercise that would only cause
unwarranted delay, especially given that the parties are capable of
producing evidence to prove their respective claims.
15. So far as the judgments relied upon by learned counsel for
the petitioner are concerned, in the case of M.P. Rajya Tilhan
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Utpadak Sahakari Sangh Maryadit, Pachama, District
Sehore & Ors. (supra), reliance has been placed on the
paragraph wherein the Hon’ble Apex Court has discussed the
provision enabling appointment of a Commission to facilitate the
Court in arriving at a fair and just decision. This Court does not
dispute that a Commission may be appointed in appropriate
cases; however, the crucial issue is whether such a Commission
can be appointed for the purpose of collection of evidence. In the
considered opinion of this Court, the provision itself does not
permit exercise of powers under Order 26 Rule 9 CPC for collection
of evidence or for the purpose which is capable of being proved by
the parties.
16. In the case of New Meena Sahkari Awas Samiti Ltd.,
Lucknow, through its President (supra), learned counsel for
the petitioner has relied upon a paragraph dealing with the
general scope of Order 26 Rule 9 CPC. The said discussion
pertains to the general jurisdiction under the provision and does
not extend to confer upon a Commission the power to collect
evidence.
17. In the case of Shanti Lal & Anr. (supra), a Co-ordinate
Bench of this Court affirmed the well-settled legal position that the
provisions of Order 26 Rule 9 CPC cannot be invoked to collect
evidence in support of a party’s case, as the burden of proof lies
upon the respective parties to adduce evidence at the appropriate
stage and it is equally well established that the power to appoint a
Local Commissioner under Order26 Rule 9 CPC is discretionary
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and must be exercised in light of the facts and circumstances of
each case. In the case of Sri Shadaksharappa (supra), the Court
laid down guiding principles for the exercise of powers under
Order 26 Rule 9 and 10 CPC.
18. In light of the above, and considering that the case has
already reached an advanced stage, with the evidence of the
plaintiff-petitioner concluded and the defendants-respondents yet
to present their case, the Court finds that the petition for
appointment of a Commissioner under Order 26 Rule 9 CPC was
unwarranted and was rightly dismissed.
19. Accordingly, this Court finds no ground to interfere in the
impugned order in exercise of its jurisdiction under Article 227 of
the Constitution of India. Hence, the present writ petition is
dismissed.
20. Pending application(s), if any, stand disposed of.
(BIPIN GUPTA),J
Anand Tanwar/
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