The appellate court has the discretion to order local investigation or local inspection if it feels that the ends of justice so required. The exercise of this discretion should not be arbitrary but judicial after application of mind to the facts of the case and to the real question in controversy between the parties.

( 1 ) HEARD parties counsel. With their consent this writ petition is disposed of finally.

( 2 ) BY means of this writ petition, the tenant has challenged the order of the lower appellate authority dated 23. 10. 1997 rejecting the petitioners application for cross-examination of Smt. Prem Arora and the application for returning the will to the landlord which he had filed. By the same order, the prayer for issuing Commission has also been rejected on the ground that no such application was found on the record.

( 3 ) WHEN this writ petition came for admission before Hon. Shitla Prasad Srivastava, J. on 11. 11. 1997, his Lordship was of the view that so far as the order rejecting the application for cross-examination of Smt. Prema Devi and of returning the will was concerned, it required no interference. Notices were, however, issued to the respondents with regard to the petitioners prayer for quashing the order of the lower appellate court refusing to issue Commission.

( 4 ) IT is provided under Order XXVI, Rule 9. C. P. C. that where the Court deems a local investigation to be requisite or proper for the purpose of adjudicating any matter in dispute, the court may issue a Commission. The Court is vested with a discretion to order a local investigation or not and no party to the suit can claim as of right to get a Commission issued for the purpose of local investigation. Exercise of such a discretion should be judicial and not arbitrary. Like the trial court, the appellate court is also possessed with this discretionary power but it has to be exercised cautiously and not to fill in lacuna of the case of the party applying for the same. The appellate court would be perfectly right in ordering local investigation or local inspection if it feels that the ends of justice so required.

( 5 ) SECTION 34 (1) (c) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the act), provides that the District Magistrate, the Prescribed Authority or any appellate or revisional authority shall for the purposes of holding any enquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Procedure Code, when trying a suit in respect of the matters of inspecting a building or locality or issuing a Commission for the examination of witnesses or documents or for local investigation.

( 6 ) RULE 27 has been enacted by virtue of the powers conferred under Section 34 (8) of the Act in respect of local inspection by Court, while the power to issue Commission is conferred by virtue of Section 34 (8) read with Rule 22 (f) of the Rules.

( 7 ) RULE 22 (f) provides that in addition to the powers conferred under clauses (a) to (d), the district Magistrate, the Prescribed Authority or any appellate or revisional authority shall also have powers referred to in Sections 151 and 152 of the Code of Civil Procedure to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned. However, no guidelines have been laid down either under the Act or Rules as to in what cases local inspection be made or local investigation by Commission be ordered. The matter has been left to the sole discretion of the authority concerned and he is the sole Judge to decide whether such an order is necessary for the ends of justice. The exercise of this discretion should not be arbitrary but judicial after application of mind to the facts of the case and to the real question in controversy between the parties. Whether or not an order for local inspection or issuing a commission for investigation is necessary for the ends of justice and for just decision of the case, the answer to this question will depend upon the facts of each particular case and no hard and fast formula can be laid down in this regard. No party to the proceeding under the Act can claim such an order as of right and the decision has to be taken by the authority concerned by applying its mind to the matter in