Challenging the order of trial Court passed in Regular Civil Suit No. 93 of 2010 rejecting the request of the present petitioner-original defendant to get the Court Commissioner appointed under Order XXVI Rule 9 CPC, this writ petition is preferred under Article 227 of the Constitution of India.
This request has been made by the defendant in the suit of the plaintiff for permanent injunction in respect of the land bearing Revenue Survey No. 163/3. It is the say of the defendant that as the allegation is of the nature that there is an attempt to encroach upon the land of the plaintiff, unless the Court Commissioner is appointed, certain facts which the defendant chooses to reveal before the trial Court will not be able to elucidate. He further states that by way of a registered sale deed executed in the year 1980, the defendant is in possession of the land bearing Survey No. 163.
On perusal of the order impugned dated 21st September 2011, the trial Court did not find it necessary to accede to such a request on the ground that this is nothing but to create evidence. The Court was also of the opinion that there is no revenue record available with the case papers to establish prima facie version of the defendant.
The provision of Order XXVI Rule 9 CPC is essentially the discretion of the trial Court. While trying any suit, at any stage, the Court deems such local investigation necessary for the purpose of elucidating any matter in dispute, it is the discretion of the Court to appoint any person to make such investigation and submit report to the Court.
It has been time and again held by various Courts that the object of carrying out local investigation is not to collect the evidence but it is with a view to elucidate any point otherwise doubtful on the evidence produced before the Court. The Court can exercise its discretion to so appoint the Commissioner and carry out local investigation through such person. This exercise of discretionary power, of course, is required to be done in appropriate facts and situations alone. As can be noted from the record, the Court has rightly exercised its discretion which does not call for interference at the hands of this Court under Article 227 of the Constitution.
As from the contentions raised by the learned advocate for the petitioner, if there is any confusion with regard to overlapping of the boundaries, reference needs to be made to the D.I.L.R for carrying out measurements afresh and it is not the Court Commissioner who can perform such a task. At this stage, learned advocate for the petitioner seeks liberty to move the trial Court for making appropriate request for arranging measurement of the land through the office of D.I.L.R.
Special Civil Application stands disposed of in the above terms. No costs.
{Ms.
Sonia Gokani, J.} Prakash* Top