( 1 ) THE applicant submits that he has filed S. C. S. no. 53/01 for declaration and injunction on 16. 4. 01 against the opponent wherein a separate application for appointment of court commissioner at exh. 6 was also submitted. Inspite of Caveat petition no. 68/01 is on the suit record, the ex-parte order appointing the court commissioner was passed by the trial court on 16. 4. 01 and ultimately resulted into the court commissioners partial ex-parte panchanama report made on 16. 4. 01 at Mark-A. Inspite of neither further direction nor further application for getting direction was submitted by the court commissioner, the order below Mark A was passed on 21. 6. 01 by the trial court. It is against these orders, the present civil revision applications are preferred.

( 2 ) ACCORDING to Mr. Kapadia, L. A. for the applicants in both the revision applications, the trial court failed to direct notice to the defendant prior to passing ex-parte order below exh. 6. Inspite of the fact that in various decisions of Supreme Court and High Court, the ratio has been held that it is not the business of the court to collect evidence for a party, the trial court passed the order below exh. 6. Inspite of the specific direction made by the trial court in its order below exh. 6 no prior written notice has been given to the defendant by the court commissioner. It is erred by the trial court that on perusal of the notice given by the court commissioner, there is specific endorsement of the court commissioner that the son of the defendant has refused to sign on the said notice and the defendant is not present and there is reason to believe that the said notice is duly served to the defendant as his son has refused to sign the same. Therefore, the ex-parte order below exh. 6, the panchanama report at mark A and the order passed below Mark A be set aside by allowing these revision applications with cost.

( 3 ) THE learned advocate for the respondents in both the revision applications filed a common affidavit-in-reply in both the revision applications on 14. 8. 01 wherein it is stated that no caveat was served on or before 16. 4. 01. That the plaintiff filed S. C. S. no. 53/01 and it is clear from rojkam that there is no endorsement of any caveat having been received before that date. On 16. 4. 01 the trial court passed order appointing Shri Alkesh I Gandhi, Advocate as court commissioner to make panchanama of the suit premises after giving due and prior notice to the respective parties. Therefore the order was passed on a specific condition that the commissioner must make panchanama after giving due and prior notices to the respective parties. The court has power to appoint commissioner subject to notice to the other side. Accordingly, Mr. Gandhi had sent a written notice to defendant who is the present applicant at his residence in the presence of the plaintiff and clerk of advocate Mr. S. K. Kazi. However, the defendants major son refused to sign and accept the notice. Therefore, only copy was left. Accordingly, notice was served to both the parties. It is denied that ex-parte order was passed by the learned trial court on 16. 4. 01. Inspite of the notice, if the present appellant/defendant chooses to remain absent, no court can help such a person. Under Order 39 Rules 7 and 8, the court has power to order for panchanama after giving due notice to the parties. Therefore, in the instant case, same thing was done and there is no breach of rules or natural justice as alleged.

( 4 ) ACCORDING to L. A. for the respondents, the property was given on rent to the plaintiff and it was in dilapidated condition and the if the ceiling is not repaired, it will fall down and therefore it was necessary to appoint court commissioner and make panchanama of the portion of the property. The ground floor of the rented premises was also in dilapidated condition and therefore also the panchanama of the position was necessary. If the ceiling is bad and i