Honble SHARMA, J.–Instant revision impugns the order dated January 17, 1998 of the learned Civil Judge (Junior Division) Raisinghnagar, whereby the application under Order 26, Rule 9 CPC, moved by the plaintiff-non-petitioner (for short the plaintiff) was allowed and Commissioner was appointed for making enquiry about the fact of possession of the plot in dispute.

(2). Brief resume of the facts is that the plaintiff instituted a suit for injunction against the defendant petitioners (for shot the defendants) in the trial court, seeking relief that the defendants be restrained from transferring plot No.14 situated in Industrial Area, Raisinghnagar, in their names either by way of lease or by way of a sale deed. It was also prayed that the defendants be restrained from dispossessing the plaintiff from the said plot. Alongwith the plaint, an application seeking temporary injunction was also filed by the plaintiff. Learned trial court allowed the application and restrained the defendants from interfering with the possession of the plaintiff and encroaching upon the suit plot. The Additional District Judge, however allowed the appeal of the defendants preferred under Order 43, Rule 1 CPC and reversed the finding of the trial court with a direction that original suit be decided within six months. The plaintiff thereafter submitted an application under Order 26, Rule 9 CPC before the trial court for appointing Commissioner to ascertain as to who was in possession of the suit plot on the relevant date. The application was allowed by the trial court vide order under challenge.

(3). Mr. J.P. Joshi, learned counsel for the defendants urged that Commissioner can not be appointed with an object to create evidence in favour of one of the litigant parties. The question of possession has to be proved by cogent evidence and it cannot be determined on the basis of the inspection report of the Commissioner. Reliance was placed on Basanta Kumar vs. Baidya Kumar (1).

(4). Mr. R.R. Nagori, learned counsel appearing for the plaintiff on the other hand supported the impugned order of the trial court. Learned counsel attracted my attention towards the provisions contained in Rule 9 and Rule 10 of Order 26 CPC. It was contended that the trial court is vested discretionary powers under the said provisions to appoint the Commissioner for elucidating any point in dispute. Reliance was placed on Mukhtiar Singh vs. Tej Kaur (2), Mahendra Nath vs. Purnananda (3), John vs. Kamrunnisa (4) and Sanku Ranga Rao vs. Devi Prasad Sahu (5).

(5). I have given my thoughtful consideration to the rival submissions and carefully perused the impugned order.

(6). At this juncture it will be useful to examine the relevant statutory provisions.

(7). Order 26, Rule 9 CPC provides 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 proper, 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.

Order 26, Rule 10 CPC, reads as under -

``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 his report in writing signed by him, to the court.

(2) Report and depositions to be evidence in suit.–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 Commissi

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