The power to appoint a Commissioner under O. 26, R. 9, C. P. C. is wide, but should be exercised with restraint. The order should be supported by reasons indicating that the local investigation is requisite or proper for elucidating any matter in dispute.

S. C. MOHAPATRA, J.

( 1 ) IN this Civil Revision by the defendant the order appointing a Commissioner in exercise of the power under O. 26, R. 9, C. P. C. is assailed.

( 2 ) PLAINTIFF's suit as it stands at present is for mandatory injunction to the defendant for removal of a wall constructed by the defendant obstructing his passage. The case of the defendant is that the land which is claimed by the plaintiff to be a passage is a part and parcel of his backyard which was not used by the plaintiff as a passage. There is no dispute as to the disputed land belonging to different plot numbers.

( 3 ) BEFORE evidence was adduced in the suit, plaintiff filed an application for appointment of a Commissioner for local investigation. In spite of resistance by the defendant, the prayer was allowed. The following order was passed :"12-3-86. Both parties filed haziras. The petition under O. 26, R. 9, C. P. C. filed by the plaintiff and the counter thereto are put up. Heard. It will elucidate the matter if the Commissioner inquires into the matter. Hence, the petition, under O. 26, R. 9 C. P. C. is allowed, plaintiff to deposit a sum of Rs. 50/- towards Commissioner's fee in course of the day. . . . "

( 4 ) MR. S. S. Rao, the learned counsel for the petitioner submitted that the trial Court exercised its jurisdiction with material irregularity inasmuch as there is no finding whether the local investigation shall be requisite or proper for the purpose of elucidating any matter in dispute. Mrs. Padhi, the learned counsel for the plaintiff opposite party while justifying the order on merits submitted that a Commissioner having been appointed should not be interfered with since the defendant would not be prejudiced thereby.

( 5 ) AN order to issue of a commission to any person under O. 29, R. 9, C. P. C. is discretionary. Being a judicial order it is required to be supported by reasons, so that propriety of the exercise of discretion would be visible. A bare perusal of the order shows that the same is not supported by any reason. On this short ground the order is liable to be set aside on account of exercise of jurisdiction with material irregularity. However, the contention of both the parties require answer in this case.

( 6 ) A report of the Commissioner under O. 26, R. 10, C. P. C. is a piece of evidence. Thus, by appointment of a Commissioner, the Court collects evidence obviously for deciding the dispute justly. The report of the Commissioner, no doubt, is only a piece of evidence which can be rebutted by other evidence. However, the Court while issuing writ to a person as he thinks fit for making a local investigation is to see that it does not improperly assist a party by collection of evidence when such party is capable of adducing such evidence himself, since report of the Commissioner has no greater sanctity than any other evidence in the case. In the light of this principle the various decisions have been rendered which require no reference. Thus, appointment of a Commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. Merely because the matter in dispute can be elucidated by issue of writ to a Commissioner, the power under O. 26, R. 9, C. P. C. is not to be exercised freely.

( 7 ) THE power to appoint a Commissioner under O. 26, R. 9, C. P. C. is wide. Wider the power, greater should be the restraint.

( 8 ) IN ILR (1966) Cut 412, A. Satyanarayana Naidu v. Sarbeswar Das prayer was made for issuing a commission at the cost of the defendant to rebut the report of the Commissioner. It was held that Court should assist a party to depute a person for that purpose which, however, would not be a piece of evidence under O. 26, R. 10, C. P. C. In that case, it was not disputed that the disputed land can be measured by an Engineer or other expert. In ILR (1959) Cut 589, (Labanya Devi v. Govinda Malik) relying upon a decision reported in AIR 1928 Pat 278, Mt. Saraswati Bahuria v. Suraj Narai