IMPORTANT POINT
Order 26 Rule 9 CPC that if and only if the Court is satisfied that certain matters which are relevant for determining the issue in the suit can be obtained only by the local inspection by a Commissioner, the Court will issue a Commission-The Commission Report mentions the details necessary to elucidate the issue in dispute, for which the Commission was appointed, irrespective of whether the parties have filed any objection or not to the Commission Report.

JUDGMENT :

B. SUDHEENDRA KUMAR, J.

1. The petitioner is the plaintiff in O.S. No. 4756 of 2013 on the files of the court below. The petitioner filed I.A. No. 3416 of 2017 before the court below Praying for remitting the Commission Report and sketch. The court below as per Ext.P5 order dismissed the said application. The petitioner filed I.A. No. 13209 of 2017 for reviewing the said order. The court below as per Ext.P7 order, dismissed the said review petition, stating that there is no error apparent on the face of the records to review order dated 24.07.2017 in I.A. No. 3416 of 2017.

2. Service is complete. However, there is no appearance for the respondents. Since there is no appearance for the respondents, considering the importance of the question involved in this case, this court requested the learned Senior Government Pleader Sri. Johnson M.I. to assist this court.

3. I have heard the learned Counsel for the petitioner and also the learned Senior Government Pleader, Sri. Johnson M.I.

4. The contention of the petitioner is that even though the properties were measured on 17.08.2006 by the Commissioner with the assistance of the surveyor, the properties were not identified with reference to the documents on that day, as the old survey records were not available at that time. Thereafter, without conducting any inspection, the Commissioner had filed Ext.P3 report and sketch.

5. The respondents would contend that the Commissioner had identified the properties with reference to the documents in question, i.e. Document No. 5362/99 and Document No. 816/2001 and hence there is no need to set aside the commission report and the sketch.

6. The court below observed that the Commissioner had complied with the direction of the court to inspect and identify the properties with reference to the survey records and title documents, after giving notice to both sides. The court below further observed that the petitioner had no case that identification of the properties by the Commissioner was not correct. The court below also observed that the claim of the petitioner over the pathway, which is commonly set apart to both sides, has to be established by the petitioner in the trial by independent evidence. It was also observed by the court below that there was no prayer to measure the properties with reference to the old survey numbers. After observing so, the court below dismissed the application as per Ext.P5 order. The Review Petition filed by the petitioner was also dismissed by the court below as per Ext.P7 order.

7. In the course of a civil suit, by way of incidental proceedings, the Court can issue a Commission, inter-alia, for making local inspection, as per section 75 of the Code of Civil procedure (for short the ‘CPC’). The procedure in relation to such Commission for local inspection is specified in Order 26 Rule 9 CPC, which is extracted hereunder:-

“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:

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.”

8. The opening line of Order 26 Rule 9 CPC would make it clear that the Commission can be appointed for local inspection when the court thinks it necessary. The very wording is local investigation and the purpose of local investigation is to elucidate any matter in dispute, which itself indicates permissibility of collection of evidence, in respect of matters which cannot be effectively proved, like measurement, demarcation, identity of the property, the physical features, etc, by oral evidence. Therefor