The High Court's supervisory jurisdiction under Article 227 is limited to ensuring subordinate courts act within their authority, and local commissioners can be appointed before recording evidence.

JUDGMENT(Oral)

1. This petition is, in my view, a complete misuse of Article 227 of the Constitution of India. Petitions such as this clog the board of this Court, resulting in cause lists running into close to a hundred matters every day. It is also a matter of regret that a matter so insubstantial has remained pending for three years as on date.

2. The impugned order dated 28th November 2018, passed by the learned Administrative Civil Judge (the learned ACJ) in CS 133/16 (Ashok Kumar Jain v. Rajiv Sikka) merely appoints a local commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC).

3. Order XXVI Rule 9 of the CPC reads thus:

"9. Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

4. CS 133/16, in which the impugned order has come to be passed by the learned ACJ, was instituted by the respondent against the petitioner for a decree of mandatory injunction directing the petitioner to remove constructions in the suit property located at N-67, First Floor, Munshi Lal Building, Connaught Circus, New Delhi-110001, which, according to the respondent (as the plaintiff in the suit) were unauthorised.

5. During the pendency of the suit, the respondent moved an application under Order XXVI Rule 9 of the CPC, seeking appointment of a local commissioner to investigate the condition of the suit property, inter alia to ascertain the nature of the constructions present thereon.

6. The petitioner opposed the application. It was contended by the petitioner, before the learned ACJ, that no local commissioner could be appointed at a stage when evidence was yet to be led in the matter. It was also contended that the report of the local commissioner, even if it were to be obtained, could not be treated as evidence.

7. The learned ACJ has repelled the contentions of the petitioner. The learned ACJ holds, in the impugned order, that, as the parties were at issue with respect to the nature of construction in the suit property, the appointment of a local commissioner to ascertain the actual physical status of the suit property, so as to identify the actual parameters of dispute, was necessary. The learned ACJ has also acknowledged the position that a report of a local commissioner was not evidence and that no local commissioner could collect evidence for either of the parties. For the aforesaid reason, even while directing the local commissioner to visit the suit property and take photographs of the construction thereon, the learned ACJ clarified that the local commissioner was not empowered to make any enquiry as to whether the alleged constructions were illegal or lawful or even as to the persons who had erected the said constructions. The learned ACJ has correctly acknowledged that these aspects were matters to be decided consequent on trial by the Court.

8. The relevant passages from the impugned order, in the above context, may be reproduced thus:

"At the outset, the law is well settled that a Local Commission can be appointed even in a suit for injunction. In the present case, the plaintiff in p