JUDGMENT :

1. Rule. Rule is made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at the admission stage.

2. Issue that arises for consideration in the present petition is whether a Court Commissioner for measurement of land under the provisions of Section 75 r/w Order 26 Rule 9 of the Code of Civil Procedure, 1908 can be appointed even before a trial in the suit commences or whether such an appointment can be made only after adducing of evidence by both the parties. The issue arises essentially on account of divergence of views expressed by this Court in several of its decisions.

3. The power of Court to appoint Court Commissioner is traceable to Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (‘the Code’) which read thus:

75. Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pe