IMPORTANT POINT
The discretion to issue a Commission for local investigation lies with the trial Court, and the report of the Commissioner is not binding on the trial Court.

JUDGMENT :

SUNIL DUTTA MISHRA, J.

1. Heard learned counsel for the parties.

2. This Civil Miscellaneous Application has been filed for setting aside the order dated 17.01.2018 passed in Title Suit No. 435 of 2009 by the learned Court of Sub-Judge 1st, Kaimur at Bhabua whereby and whereunder the learned Court below has rejected the petition dated 07.08.2014 filed by the petitioner for appointment of Pleader Commissioner.

3. Brief facts of the case are that the respondent being plaintiff filed the suit being T.S. No. 435 of 2009 for declaration of title and possession over the suit land. Petitioner is one of the substituted legal heirs of original defendant who filed the petition dated 07.08.2014 for appointment of Pleader Commissioner to inspect the suit land and to submit a report including whether there is pakka room, hand pump, tree and a shop on the suit land or not. It was stated in the petition that PW-2 in his cross-examination in Para 7 denied the said fact. It is essential to bring the correct fact on record. The said petition was rejected observing that Pleader Commissioner cannot be appointed for controverting the statement made by the witness nor the same can be done for collecting the evidence.

4. Learned counsel for the petitioner submits that the petitioner had not filed the application for appointment for Pleader Commissioner keeping in view of the cross-examination of PW-2 rather the same was referred in order to show the necessity for appointment of Pleader Commissioner on the ground mentioned in the petition. The said petition was neither belated nor it was filed to waste the time of the Court and the finding arrived by the learned trial Court is fit to be set aside.

5. Learned counsel for the petitioner relied upon a judgment of this Court in Ram Shekhar Singh vs. State Bank of India and Others, 2005 (2) PLJR 524, wherein the Court has observed that to avoid vagueness and to come to a definite conclusion about the actual physical position of suit premises, it is necessary that a Pleader Commissioner should have been appointed by the learned Court below to report about the exact position of the suit premises.

6. Learned counsel for the respondent submits that the suit land is in possession of the plaintiff but wrongly the name of respondent mentioned in survey khatiyan accordingly, the suit has been filed for declaration of title and possession which is denied by the respondent and both the parties are claiming title and possession which is required to be adjudicated on the basis of oral and documentary evidence produced by the parties.

7. Learned counsel for the respondent further submits that the petitioner had filed the said application after examination of three witnesses on behalf of the plaintiff-respondent. The law is well settled that the local Commissioner cannot be appointed for collecting the evidence on record and also to contradict the statement of witnesses. The parties have to prove their case by documentary as well as oral evidence.

8. From perusal of the impugned order, it appears that the learned Court below observed that the said application for appointment of Pleader Commissioner was filed on the basis of the statement made by PW-2 Naresh Kumar Agrawal, in his cross-examination in paragraph-7, who is not the plaintiff. The Pleader Commissioner cannot be appointed for verifying the truthfulness of the statement of the witnesses. The Court found that the petition of the petitioner has no force and accordingly, rejected the same.

9. It is clear from reading of Order 26 Rule 9 of the Code that:

(i) Primarily it is the discretion of the trial Court to issue a Commission for local investigation.

(ii) Such Commission can be appointed at any stage for the purpose of ascertaining the facts enumerated in the provision for elucidating any matter in dispute.

(iii) It does not provide the stage when a Commission can be issued.

10. In Padam Sen and Another vs. State of U.P. AIR 1961 SC 218, the three Judge Bench of t