The court has the authority to appoint Advocate Commissioner for inspection and collection of evidence under Section 9 of the Arbitration and Conciliation Act.

A.No.3773 of 2012 is filed by the owner of the properties for appointment of Advocate Commissioner to inspect and file a report on the construction completed till date and to note down the physical features of the schedule mentioned properties with the assistance of licensed Civil Engineer. Whereas, A.No.4220 of 2012 is filed by the building contractor to dismiss the application for appointment of Advocate commissioner.

2. The parties, for convenient sake, are referred to, as per their rank in A.No.3773 of 2012.

3. Few facts, which are relevant for consideration herein, are as follows:

The applicant/owner of the properties proposed to develop a housing project upon the lands in question and engaged the respondent/contractor to do the construction work.

Both the parties entered into a construction agreement on 2.2.2011 subject to terms and conditions. Admittedly part of the construction work was completed. In the course of the same, dispute arose between the parties, leading in termination of construction agreement by the applicant/owner, resulting in stoppage of construction work. While according to the applicant/owner, the work completed till date is not only defective, but also not commensurate with the amount received by the respondent/contractor, according to the respondent/contractor, it is the applicant/owner, who is due and payable huge amount to the building contractor and the grievances raised by the applicant/owner regarding defective nature of construction and excess payment for the construction completed are contrary to actual state of affairs.

4. Regarding the nature of the dispute raised between the parties, the same need not be elaborately dealt with in the present application, as the same is the subject matter of arbitration, to which, the parties agreed to refer the dispute. Pending appointment of arbitrator, the applicant/owner has come forward with two applications (i)A.No.3773 of 2012 and (ii)O.A.732 of 2012. While the relief sought for in A.No.3773 2012 is for appointment of advocate commissioner to inspect the properties and file a repot and to note down the physical features of the schedule mentioned properties with the assistance of a licensed Civil Engineer, the relief sought for in O.A.732 of 2012 is for interim injunction restraining the respondent or any body claiming through them from interfering with the construction work to be carried on in the schedule mentioned properties by engaging third party/contractors by the applicant/owner.

5. This Court, at the initial hearing of both the applications, having satisfied with the reasons set out in the affidavit filed in support of the application and the circumstances under which, the applicant approached this court for the reliefs stated supra and having regard to the vast extent of the properties i.e. 46 plots on eastern and western portion respectively, thought fit to appoint two Advocate commissioners to visit the property to measure the constructed and the remaining area with the help of two licensed Civil Engineers. In pursuance of the order of this Court, the Advocate Commissioners, after giving due intimation to the parties, reached the schedule mentioned properties, but the Advocate Commissioners were unable to execute the warrant, in view of the objections raised by the respondent/contractor. The respondent/contractor thereafter filed (i) A.No.4220 of 2012 to dismiss the application for appointment of advocate commissioner and (ii)OA.789 of 2012 for an order of ad interim injunction restraining the owner/applicant from interfering with the possession of the respondent/contractor including the work allotted to the respondent/contractor.

6. The applicant/owner has come forward with the aforementioned applications for the reliefs stated supra on the ground that in pursuance of the termination of construction agreement, the respondent/contractor is duly put on notice about the intention of the applicant to carry on and to complete left o