JUDGMENT

Manmohan Sarin, J.

1. The petitioner by this civil revision petition is assailing the order dated 15.4.1994 passed by Mrs. Seema Maini, Sub Judge, Delhi in suit No.560 of 1978, whereby she allowed the application moved by the respondent under order 26 rule 10 C.P.C. and permitted the Local Commissioner's report together with the documents, to be admitted in the evidence'

2. The petition raises a short but important question with which the civil courts are frequently confronted viz., whether an ex parte report of the Local Commissioner can be admitted in evidence in terms of order 26 rule 10(2) C.P.C. without the same being proved?

The answer to this question turns on the provisions of order 26 rule 10 C.P.C. and order 26 rule 18 C.P.C. Before examining the legal provisions, the facts in brief of the case may be recapitulated:

(i) The respondent No. 1 Satish Ray Kapoor had on 25.8.1987 instituted a suit for permanent injunction seeking to restrain the petitioner herein i.e. defendant No.1 in the suit from constructing a mezzanine with or without the consent of the petitioner and other respondents in Shop No.78/3, Janpath, New Delhi. The respondent had also alongwith the suit moved an application under order 26 rule 9 C. P.C. for appointment of a Local Commissioner to ascertain the construction alleged to have been carried out in premises in suit. The court allowed the application and appointed ex parte, a Local Commissioner to ascertain the recent construction having been made in portion of 78/3 Janpath, New Delhi. The court also directed the report to be submitted on or before 28.8.1987 and status quo to be maintained till then, The court, however, did not fix any date or time for the inspection of the premises by the Local Commissioner. No order for issue of notice to the petitioner and other respondents, who were defendants in the suit to be present at the time of inspection, by the Local Commissioner was passed.

(ii) In the event, the Local Commissioner also did not issue any notice to the petitioner or other respondents-regarding his proposed inspection. The premises were inspected and a report dated 26.8.1987 was submitted. The proceedings of the inspection by' Local Commissioner were signed by the Advocate of the respondent and the respondent. It is recorded by the Local Commissioner that there were employees of the petitioner, besides carpenters and labourers but the said employees refused to sign the proceedings. No objections were filed to the report of the Local Commissioner by the petitioner.

(iii) That thereafter on 20.4.1993, the respondent moved an application under order 26 rule 10 C. P.C. praying for the report of the Local Commissioner alongwith the supporting record be exhibited and read in evidence in terms or order 26 rule 10(2) C.P.C. The petitioner, herein, filed a reply to the said application that the appointment of the Local Commissioner was ex parte. The report of the Local Commissioner could not be tendered in evidence without being proved. The trial court vide the impugned order dated 15.4.1994 allowed the application under order 26 rule 10(2) C.P.C.

3. The learned counsel for the petitioner contends that the Local Commissioner's inspection was done in the petitioner's absence. It is denied that any of petitioner's employees were present during the inspection and had refused to sign the report. It is urged that the Commissioner's report is absolutely vague and lacking in material particulars in this regard. No names of the employees or their designation has been mentioned. As regards the legal position Mr. Ishwar Sahai, Senior Advocate appearing for the petitioner has submitted that the provisions of order 26 rule 10(2) C.P.C. cannot be invoked in the instant case, since the appointment of the Local Commissioner was ex parte and no notice even after the appointment was issued to the petitioner regarding the said appointment or the time and date of the inspection. Not only this the Lo