A court cannot issue a commission for the purpose of fishing out evidence.

( 1 ) THIS Rule is directed against the ex parte order No. 3 dated 6th Jan. 1977 and the ex parte order No. 7 dated 11th Jan. 1977 under Section 151 and Order 39 Rule 7 of the Civil P. C. directing for issuing a writ of commission since modified by another ex parte order No. 8 dated 14th Jan. 1977 passed by the learned Subordinate Judge, 4th Court, Alipore in Title Suit No. 2 of 1977. The aforesaid Title Suit 2 of 1977 was instituted by the plaintiff opposite party No. 1 inter alia praying for leave under Order 1. Rule 8 of the Civil P. C. for a declaration that the resolutions passed in the three meetings dated Oct. 31, 1976 and Nov. 1, 1976 by the Institution of Engineers (India) were illegal, arbitrary and void and also for a decree for permanent injunction restraining the defendants to carry into effect any of the resolutions passed in the said meeting and for other ancillary reliefs.

( 2 ) THE short facts of the case are that the petitioner No. 1 viz. the Institution of Engineers (India) was initially incorporated at Madras in 1919 under the Indian Companies Act and under the Royal Charter granted to the said institution, the said institution is constituted and administered in the manner as laid down in its Bye-laws and regulations from time to time. Under the Bye-laws existing from time to time the Council of the Institution was empowered to make or amend or rescind regulations so that the same are not repugnant to the Charter and Bye-laws. It further appears that after consideration of suggestion from the local centres of the Institution at its 489th meeting held at Shillong on the 31st May, 1976 and 490th meeting held in New Delhi on the 17th Aug. 1976 the Council passed various resolutions recommending changes in the Bye-laws and the Regulation, inter alia, relating to the proposed new constitution of the Council and allied matters. On 31st Oct. 1976, an extra ordinary general meeting was held for considering the proposed amendment of the Bye-laws and according to the petitioner viz. The Institution of Engineers, the proposed amendment of the Bye-laws was passed on the said date. For the purpose of the said meeting proxies held by the persons concerned were ascertained and declared at the meeting. After the said resolution was passed adopting the proposed amendments of the Bye-laws, a special general meeting was also held on the said date and in the said special general meeting the proposed amendments to the regulations were also approved and the proxy forms submitted for the said meeting were counted. On Nov. 1, 1976 another special general meeting was held and the said meeting was a requisition meeting. The said requisition meeting did not pertain to change the Bye-laws and regulations but was concerning the proposed Council resolution recommending to Government for formation of an all India services for Engineers and after discussion the said resolution was put to vote and lost and the proceedings of the said meeting were duly published. The petitioners can-tend that after the institution of the said Title Suit No. 2 of 1977, the plaintiff wrongfully obtained ex parte order under Section 151 read with Order 39 Rule 7 C. P. C. which was modified by another ex parte order dated 14th Jan. 1977 for appointment of a pleader Commissioner for the purpose of preparation of the proxy vote from Utkal on the allegation that the counting of proxy forms was wrong. The petitioner, thereafter, made an application under Section 151 of the C. P. C. praying setting aside the ex parte order and the plaintiff filed a written objection to the said application under Section 151 of the C. P. C. but the said application of the defendant was rejected and the learned pleader Commissioner was directed to proceed with the inventory commission and to submit his report. It may be stated in this connection that by the first ex parte order the learned pleader Commissioner was directed to count the proxy votes from Utkal and to pre