4^ HjGH,COURT_OFCHMATTJSGARH;BILASPUR Wnt Petition,(2271, No, 5783,of2008 : P^jtjoner .' •!:Kuiwant-Stn9h,AQeM-50.years,.S/o.Shrl : ^ JogaSJngh.'By-ProfsssJon—'Transporter, R/o. Bus-stand Mahasamund, Tahsll \ Mahasamund, Distt. Mahasamund (CG)< V^rsus 3§§E°n^ent ' ; RajendraKyrnar :Sahu, S/o« SbrlSukhlaS Pjaintift Sahu,,Age-40.years,ByprofessJon - Bysjnessmen, R/o. Near Ralpur Naka, Mahasamund, Distt. Mahasamund (CG). (Writ Petition under Articie 227 of ConstJtutlon of indla) SB: Hon'ble Mr. Satish K. Agnihotrl, J. Present: Shri JA. Lohanl, c-ounse! for the petitioner. • ORAL (Passed on this 17th day.of October, 2008)' Th.e petltioner, by this • petltion-, Impygns the order dated 19-9- 2008 (Annexure P/1) passed by 2nd Civil Judge, 'Ciass -1, Mahasamunci in Clvii Suit No.25-A/200S, whereby the application dated 29-8-2008 (Anriexure P/4) .fiied by the petltloner/defendant under Order 26 Ryie 9 of the Code of Civil Procedure, 1.9,08 (for short, "CPC") to appoint a commission to make spot jnvestjgation injespect ofthe.sult iand, .was rejected. . ' '. 2) The jndisputabie fads, in nutsheii, as projected by'-the petjtloner are that on 15-1-2008 the respondent/piaintiff fiied a suit being Cjvii Suit No.25-A/'2008 before 2nd- Civil Jycige, .Class-1, Nahasamund,'against the petltioner/defendant'seekjng relieffor ^graMofdecreefor:d possession of total land bearing K.H.No.292/3 In 0.009 hectares, -2 descrlbed under Schedule -W i of Patwari Haka, Mahasamund wlthln Distt. IVIahasaiTiund. Itwas ·averred.in thepetltlon that ie the sult Sand plaintiff has compSete. possession and the defendant Is. a- trespasser, who had trespassed the land to construct the shop, started construction work againstthls action ofthe defendant, plaintlff had flled cjvi! sujt. 3). Mr. Lohani, learned coun'set appearlng for the petjtloner reiies on a dedsioraof the learned single Judge of the .Hlgh Court of IVIadhya Pradesh -In the matter of Heeraial Vs. Thakyr Das , wherein it has been held that in a case of encroachment of land.where parties are unable to •decide how much land Is in possession of parties, as against the actual land, then In such cases, it is necessaiy to •appolnt a commlssion to make the spot inspectlon^ 4) The object of ioca! Investigation .under Drder 26 Rule 9 of the CPC Is to alucidate any matter sn dispyte, not ;to colject evidence. The first and foremost requirement.is to examine the evide'nce-and wltnesses adduced by the parties in order to conie toa fi'ndlng and thereafter the court may, in the facts sltuation of the caseY appoht theco.mmisslon for local investigationjorthe purpose of eludtiating any matter in dispute or market value of the' properfr^ or arrioynt of mesj?e profit, 5) Hlgh Courtof Himachal Prdesh in the matter of Bali Ram Vs. Mela Ram and another^ hastakenthesimiiarview^s under: "13. Rute 9 of Order 26 oftheCode of Civil Procedure (hereafler referred' to as "the Code!'), :empowers the Courtto sssue commjsslon to make local investigation which may be required for the purpose of;ejycjdatin9 any matter in dispute. Though the ob|ect_ of 'the. local jrwestlgation is not to coliect evidence^which can be taken in the Coyrt,'byt the purpose is M oNain such^ evldence, which from its- pecyilar nature, cari only be had ori the spot with a view to eiucidate any point l2003(3)MPHT347 2 AIR 2003 HiFnachal Pradesh 87 S^^-^^s ^- which Is ieft doubtfu! on the evidence produced before the Court. To Issue a commlssion under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must appiy for sssue. of commissjon s-yo mofa, if, in the facts and drcumstances of the case, it is d-eemed necessary that a local investigatlon is required and Is proper for the purpose of etucidating any matter In dispyte. Though exercise of these powers is discretionar^ wjth the Court, but in case the Soca! invesiigation is requisite and proper in the facts arsd circymstances of the case, It.shoyid'be exercised so that a flnal andi just dedsion is rendered in the case". S) Divisjon Bench of High Court of Sikkim in the matter of Tylamaya Chettri and another Vs. ^Yonarayan Pradhan and others3 has obseived as ynder:' "4. Order 26, Rule 9 CPC authorises the Court to appolnt a cominjssloner If It conslders a Jocal investlgation to be requisite or proper for the purpose of ejuddating any matter In dlspute, or for other reasons mentioned thereln, The rnatter is thus left to the discretion of the Court. •The dlscretlors is hov^ver a judicial one and not an arbitrary exea'cise of the po¥^er,, The object of such appointment Js to obtain evidence from the spot itseif which heips the Coyrt to properiy ynderstand and assess. the evidence on recor-d.- The report submitted by the Corrimissioner ys a piece'of evldence whsch has to beconsidered along wlth other. evldence on record. !n Mahendranath Parida v. Purnananda Parida, AIR 1988 Orissa 248, Justice R.C. Patnalk (as he then v/as) plthiiy obser\/ed as foilov^s (Para 4):- UNo doubt the provisJon 'confers a dlscretion on the Court. But the.discretion as Jt is weii known, has to be exerdssd.in a judicious and sound manner but not whimslcally and capriciousiy, What is necessary - to note in the provision is the expression : deems a local investigation to be reqyisite or proper fpr the purpose of eiucldating ' any matter in djspyte.......»..Therefore, where the Court conslders a Jocaj investigstion to be requislte and proper, ordinariiy it should not dedine to exercise jurisdlction. :ltmayi.^c!loeJuri^|ctioDjLthejrLqtion,.jsMade_^^^ of If the motlon Is mala fide or In circumstances justifyjng. refusal^ :A party- has choice and a rightto examjne a survey knowing person after getting the Identlfication. or rrieasurerrient prrvately ' AIR 2004 Sikkim 39 ^ ... '^ ^A^ -^ k'<- .-\ u^ done by him. For examining such witness, it does not seek any privliege or jndulgence." • (Emphasis suppiied) Ordinarily we wouid not have interfered; wlth an order appointing an amln commlssioner But jn the case at hand parties have dosed their evidence and. when the matter was at the stage of arguments the respondents came up with prayer for appointnient of a commissioner. iln vievv of the admitied fact that parties have already cSosed thelr evidence, acceding to the prayer: for appointment of an.amin commissjoner at this beiated stage woyld amount to permitting the respondents to fiil up Jacunae in thelr evidence thus leading to a roving inqyiry. A-Seamed singte Judge of^the Calcutta High Court •in Satish Agrawa! v. Tirath Slngh, 1996 AIHC 1761 has hdd that when the matter-awaitsargunients, the prayer made by the defendante for jocaljnvestjgation,' if ailowed, would amount to fiiling up iacunae In their evidence and such prayer shouid not be ailowed." 7) In view of foregoing, the Court belovv has exercised Jts discretion- n'ot in favour ofthe petitloner by rejecting the application for appolntment of the connmission on the ground that ts^e dlspute .has not been examined on the basis of documents and the witnesses produced, by the parties. Thus, the appolntment of the comniission was decilned at that stag.e. The petitioner ffiay make an application for-'appointment of the commisslon at an approprlate'stage as there is no bar from making second application for appointnrient ofthe commission. 8) I am of the consldered opinion that this js not a case where the commisslon ought to have been appointed at this stage. No infirmity, ijlegality or j.urisdictiona! error has been foynd inthe impugned order. 9) Thus, this Coyrt, in exercise of its supervisory jyrisdiction ynder Artide 227 of the Constjtution of India, should refrain itseif from interfering wath the order passed by the court beiow, except in such cases where perv'ersity, illegality, irreguiarity orjurisdictional error is wrlt !arge on the face ofthe record, whlch is not in the present case« //^^ %sv •v// '^^-... '^^,^"' '^^^•^^'^ ^s^^ Raju -/?. 9) The order dated 19-9-2008 ^nnexure P/1) passed by court:.be|»B% is just and proper and does not warrant interference in exercise of^|ji sypervisory jyrisdiction of this Coyrt. 10)' !n view ofthe foregoing, the petltion is dismissed sumnnarily. i sd/- 1 Satish K. Agnihotri 1 Judge