1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 429 OF 2007 Modern Educational Trust, A Trust registered and constituted under the Indian Trusts Act 1882 with its registered office at UG-1, Sehra Apartments, Dr. Dada Vaidya Road, Panaji-Goa, through its authorized trustees. 1. Mr. Iqbal Naroo, major, son of Abdul Sattar Naroo 2. Mr. Mussa Aga, major, son of Mohammed Aga 3. Mr. Shaikh Jaffer Hussain, major, son of late Shaikh Umar All c/o UG-1, Sehra Apartments, Dr. Dada Vaidya Road, Panaji-Goa. ... Petitioner versus 1. Mr. Alvaro Joao Rego, major, c/o Mr. Jude A. Rego, 4th floor, B wing, Manoshanti Complex, Dada Vaidya Road, Panaji, Goa. 2. Mr. Jude A. Rego, major, 4th floor, B wing, Manoshanti Complex, Dada Vaidya Road, Panaji, Goa. 3. Mr. Savio J. A. Rego, major, Resident of C/o Liberty Guest House, Governador Pestano Road. Panaji-Goa. ... Respondents 2 Mr. Nigel Da Costa Frias, Advocate for the Petitioner. Mr. M. S. Joshi, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 16TH FEBRUARY, 2008. O R D E R Challenge in this petition is to the Order dated 16-8-2007 of the learned Civil Judge, Senior Division, by which the learned Civil Judge has rejected the application filed on behalf of the Plaintiff for appointment of a Commissioner to carry out the inspection of the suit property. 2. Admittedly, Chalta Nos. 74 and 75 belong to the Plaintiff and the Defendants, respectively, both of P. T. Sheet No.62 of Panaji City Survey. The Plaintiff has filed a suit, inter alia, praying for an order of mandatory injunction directing the Defendant Nos.1 to 3 to remove the illegal alluminium frame work erected towards the north and north-eastern side of the building existing in the property bearing Chalta No.75 and also for the removal of illegal sewage pipes installed in the building existing in Chalta No.75 which are hanging over the Plaintiff's property of Chalta No.74 and also directing the Defendants to remove the scaffolding placed by them in Chalta No.74. 3 3. The Plaintiff filed an application dated 4-8-2007 praying therein that an independent engineer or architect be appointed as a Commissioner to visit the site and assess as to whether the works being conducted by Defendants Nos.1 to 3 project over the property of the Plaintiff bearing Chalta No.74. The Plaintiff stated that the architect or engineer to be appointed would be one mutually made available by the parties. That application came to be dismissed by the impugned Order of the learned Civil Judge, Senior Division, observing that appointment of the Commissioner would amount to collection of evidence on behalf of the Plaintiff with the assistance of the Court, and, the said application did not come under the purview of either Order 26, Rule 9 or Order 39, Rule 7, C.P.C. The learned Civil Judge also held that it was the burden of the Plaintiff to prove its own claim by producing sufficient evidence. 4. I have heard learned Counsel on behalf of the parties. Learned Counsel have placed reliance on several decisions. 5. Order 26, Rule 9 provides for commission to make local investigation and, inter alia, provides that 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 ... etc., the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. There is no doubt that it is a discretionary provision and any discretion given to a Court has got to be exercised in a judicious and sound manner and not arbitrarily. 4 The expression to be noted is that “deem a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute”. The object of a local investigation is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence. That a Commissioner cannot be appointed to collect evidence on behalf of the party is a well known principle and flows from the decisions reported in AIR 1978 Calcutta 296, (1998) 1 GLT 79, AIR 2000 Cal.91, 2001(4) CCC 416 and 2007(6) ALL MR(Journal) 29 being some of the decisions cited on behalf of the Respondents. That a Commissioner cannot also be appointed for the purpose of finding out the factum of possession is also a well settled principle which flows from the decisions reported in (AIR 1988 Raj. 224), (AIR 1996 Karnataka 257) and again from (2001(4) CCC 416), being other decisions cited on behalf of the Respondents. 6. There appears to be unanimity of judicial opinion in support of the proposition that in terms of Order 39, Rule 8, as it stood prior to its amendment, a Commissioner could be appointed even ex-parte(See Smt. Rajbir Kaur and another v. M/s S. Chokesiri and Co. 1989(1) SCC 19). It is also well settled that a Commissioner can be appointed to report on facts as to the existing condition of a disputed shop building but not how it came to be in such condition(See Lekh Raj v. Muni Lal and others (2001) 2 SCC 762 . 5 6. As far as the facts of the case go, firstly, any Commissioner to be appointed will have to demarcate on site the line of division between Chalta Nos.74 and 75 belonging to the Plaintiff and the Defendants and thereafter to find out as to what extent the construction made by the Defendants, if at all, encroaches the property of the Plaintiff. This obviously the Plaintiff will not be able to do of his own even if he appoints an expert because in the course of doing the survey the expert will have to take the measurements from various points and for that purpose it may be necessary for him to enter upon the land and premises of the other party and it could be resisted by the latter but neither of the parties can resist the Commissioner appointed by the Court from carrying out its order. In my view, the concept of collection of evidence on behalf of one party is quite different from spot investigation or local investigation. In the latter case the Commissioner only visits the spot or site and reports its existing condition. When controversies relate to identification, location, measurements of the land or premises or object it is the local investigation which is required to be done and this would be in the interest of the parties themselves as it will save time and costs as well as the time of the Court. A party who is not happy with the report of local investigation done by an expert is always at liberty to lead evidence in rebuttal. 7. In Chintapatla Arvind Babu and another v. Smt. K. Balakistamma alias Bhargavi and another(AIR 1992 Andhra Pradesh 300) a learned Single Judge of A. P. High Court held that the provisions of Order 26, Rule 9, C. P. C. permits a party to move the Court for appointment of an 6 Advocate-Commissioner for local investigation if it is requisite or proper for the purpose of elucidating the matter in dispute and the report of such Commissioner can be held as evidence in the suit in terms of Order 26, Rule 10, C.P.C. and a refusal to allow a Commissioner to be appointed prevents a party from having clinching evidence in proving the said fact. In case the Court declines to appoint a Commissioner, it may result in the perpetration of gross injustice if the relief is denied to the aggrieved litigant where it is most needed. 8. In Madhukar R. Javle v. Baskar Ramnath Shibad(AIR 1996 Bombay 96) this Court has held with reference to Order 26, Rule 9 that it is not possible to accept the contention that in exercise of the powers granted to the Court under the Code, the Court is precluded from directing inspection from other property adjacent to the suit property should such inspection be necessary in the interest of justice. 9. In Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co-operative Society and others(AIR 1996 Kerala 276) a learned Single Judge has held that the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26, Rule 9, C.P.C. to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. That was a case where the Plaintiff had filed a suit for permanent injunction to restrain the Defendants from entering 7 into the Plaintiff's land. The Plaintiff had filed an application therein for appointment of a local Commissioner for measurement and demarcation of land and it was held that the Plaintiff was entitled to be allowed and the relief of appointment of Commissioner could not be refused to him. 10. In Vaithinattar and another v. Sakhubai Ammal(AIR 2004 Madras 419) the Plaintiff had claimed that the suit property lawfully belonged to her and was encroached upon by the Defendant and had filed an application for appointment of a Commissioner to measure the property and submit a report with the sketch. The Court observed that since the best evidence in cases of such nature would have been obtained only by the appointment of a Commissioner and ascertainment of the extent of lands in possession and enjoyment to each party to the contest and since this legal necessity was not complied with it was desirable to remand the case for the appointment of a Commissioner and to give a decision based on such report. 11. Considering the ratio laid down in the above decisions, in my view, this would have been a fit case for the appointment of a Commissioner as both parties could have profited from a report submitted by the Commissioner so appointed. The appointment of a Commissioner was required to be done in the interest of justice, first, to find out what was the extent of land claimed by the Plaintiff and the Defendants in relation to the said Chalta numbers and then to find out whether the Defendants had encroached upon the land of the Plaintiff, as 8 claimed by him. Defendants would always have liberty to lead evidence in rebuttal, should the report of the Commissioner to be appointed goes against them. 12. Consequently, the petition deserves to succeed and the impugned Order is hereby set aside. The application of the Plaintiff is granted and the learned Civil Judge, Senior Division is directed to appoint an expert either an engineer or an architect in terms of prayer 4 of the said application dated 4-8-2007. Considering the facts there will be no order as to costs. N. A. BRITTO, J. RD