The central legal point established in the judgment is the imperative nature of the provision in Order 26, Rule 18 of the Civil Procedure Code, which mandates the presence of parties during a commission investigation and renders evidence taken in the absence of a party inadmissible.

1. Defendant is the revision petitioner and the revision petition is directed against the order of the court below dismissing the petition filed by the defendant to set aside the commission report on the ground that the order issuing the commission and the investigation by the commission were without notice to him.

2. The suit filed on 25 51962 is for mandatory injunction to fill up certain pits alleged to have been dug in the plaint property. The plaintiff filed A. I. A. 1090 of 1962 on 161962 for the issue of a commission to prepare a plan of the property, to mark the pits in the property and to give an estimate of the expenses necessary to restore the property to its original condition. The application was granted by the learned Munsiff on 8 61962 without notice to the defendant. The commissioner visited the property and conducted the investigation on 13 61963, also without notice to the defendant and filed his report in court.

3. The contention raised by the learned counsel for the revision petitioner was that the report of the commissioner is inadmissible in evidence and cannot be acted upon in view of 0.26, R.9,10 and 18 of the Civil Procedure Code. 0.26, R.9,10 and 18 read as follows:

Order 26, R.9:

Commissions to make local investigation.: 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."

Order 26, R.10:

Procedure of Commissioner: (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with bis report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person: The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

Order 26, R.18:

"Parties to appear before Commissioner (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence."

4. A single judge of the Madras High Court in Latchan v. Rama Krishna AIR. 1934 Madras 548 had to consider the validity of a commission report prepared in violation of 0.26, R.18, CPC. The facts were that an order for the issue of a commission was passed without notice to the defendant and no notice was also given to the defendant to be present at the time of investigation by the commissioner in the property. Cornish, J, observed thus:

"It must be remembered that R.10 (2), Or. 26, Civil P. C., makes the report of the Commissioner evidence in the suit. Therefore it is of importance that the report should not be founded on representations made to the Commissioner, or on matters brought to his notice, by one party to the suit alone. Indeed, It is so manifestly improper that one party to a suit should be given a commissioner and the advantage of a report by the Commissioner without the knowledge of the opposite party that I think this alone would be sufficient to justify the interference of a Revision