The court has wide discretion to appoint a civil court commissioner for local investigation, but this discretion must be exercised judicially and only when the party is unable to obtain the evidence themselves.

S. C. MOHAPATRA, J.

( 1 ) DEFENDANT is the petitioner in this civil revision against an order directing appointment of a survey knowing civil court commissioner to have local investigation of the disputed property to find out whether the disputed property is within the plaintiffs' plot or the defendant's plot.

( 2 ) THERE can be no doubt that O. 26, R. 9, C. P. C. , empowers a Court to depute a civil court commissioner for local investigation in a suit if he deems it requisite or proper for the purpose of elucidating any matter in dispute. See (1987) 63 Cut LT 630 (Chaitan Das v. Smt. Purnabasi Pattnayak ). Wide discretion is vested in the Court for the purpose as is clear from the plain language of the rule. Wider the power, greater should be the restraint. Therefore, the discretion is to be exercised judicially. Once it is a discretion of the Court, the facts and circumstances of the case should be carefully considered to examine if it is a just occasion for exercise of the discretion.

( 3 ) AS has been held in the decision reported in (1973) 39 Cut LT 180 (Debendranath Nandi v. Natha Bhuiyan), the object of local investigation under the rule is to obtain evidence which from its peculiar nature can best be had from the spot. In (1968) 34 Cut LT 477 (Choudhury Mohemmad Basir v. Sarangadhar Mohapatra) rejection of an application for appointment of a survey knowing commissioner to relay the maps of revisional settlement and Town Improvement settlement to ascertain the encroachment of 17 decimals of land on the ground of delay was interfered within revision on the finding that there was no delay and in view of the nature of the dispute between the parties on the question of alleged encroachment of the land it is necessary that a commissioner should have been appointed for the purpose of relaying the maps. In ILR (1966) Cuttack 412 (A. Satyanarayana Naidu v. Sarbeswar Das) it was observed that the defendant could have measured the land privately by an expert and in that view the Court can assist him to make available the services of such an expert as requested by the defendant when he was prepared to pay the cost whose report would not be evidence as provided in O. 26, R. 10, C. P. C. In ILR (1965) Cut 585 (Harihar Misra v. Narahari Setti Sitaramiah) where the report of the Commissioner was accepted and became a piece of evidence under O. 26, R. 10, C. P. C. , it was observed that a party can countermand the effect of the Commissioner's report by giving any other evidence. In (1986) 62 Cut LT 398 (Indramani Behera v. Ghaneshyam Behera) accepting the principle in the aforesaid two decisions, I held that the Court should not issue writs to Commissioner where parties can themselves get the evidence on the points for which they seek a Commissioner to be appointed.

( 4 ) THE object of O. 26, R. 9, C. P. C. is not to assist a party to collect evidence where it can get the evidence itself. The object is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record, the Court is satisfied that for appreciating the opinion of the expert evidence, it should appoint an expert as commissioner, it can on the facts and circumstances of the case, appoint a commissioner. Where the Court is satisfied on the materials available on record that a party is not able to produce the desired evidence for reasonable circumstances, the Court may assist the party to appoint a commissioner to get the evidence. However, such evidence is not binding on the Court which is to appreciate the same along with other evidence.

( 5 ) A question arises whether I should interfere with the order in revision. Where application for appointment of a commissioner is refused, revisional power should not be exercised since the application can be made in the appellate Court and such refusal can be challenged in appeal in view of S. 105 and O. 43, R. 1-A, C. P. C. Where, however, a commissioner is appointed, the report b