The appointment of Commissioner for local inspection is not a matter of right but is in the discretion of the court, and the court must satisfy itself whether local inspection is necessary to extract the truth.

Sudhir Agarwal, J.—

1. Heard Sri Ateeq Ahmad Khan, learned counsel for the petitioner and perused the record.

2. This writ petition is directed against the order dated 31.05.2012 passed by Additional district Judge/Special Judge (E.C. Act) rejecting petitioner's appeal for appointment of Commissioner for spot inspection.

3. The appellate court found that firstly such a request was never made by petitioner before trial court and secondly the petitioner has not been able to show any obligation on the part of court below to pass such an order and appellate court in its wisdom found that application submitted by petitioner is nothing but a device to delay the proceedings and to cover up the lapses in the court below.

4. It is well settled that under Order 26 Rule 10 and 11 of Code of Civil Procedure the Court is not bound to appoint Commissioner on mere asking of parties but it is for the court when it found necessary to appoint Commissioner for some further investigation or information, it can do so. Power of the court to appoint Commissioner is not disputed but it is not the legal right of parties to force the court to appoint Commissioner. A local inspection, whether necessary or not, depends on several facts, factors and circumstances which have been considered by the court below and in absence of anything to show that court finds it necessary to obtain Commissioner's report, such appointment cannot be forced.

5. Considering the aforesaid provisions a Special Bench of this Court in The Sunni Central Board Vs. Sri Gopal Singh Visharad, 2010 ADJ 1 (SFB) in the judgement delivered by (Hon. Sudhir Agarwal, J.) in paras 3749 and 3750 observed that a discretion is vested in the Court. When it is of the opinion that any local inspection or scientific investigation is required, it can order accordingly so as to help it in extracting truth. This shows that appointment of Commissioner for local inspection is not a matter of right or matter of course but it is for the Court to satisfy itself whether it is so required to extract the truth or not. If in its opinion it is not so required it cannot be compelled.

6. Learned counsel for the petitioner placed reliance on this Court's decision in Jagat Narain Jain Vs. The IV Addl. District Judge, Kanpur and others, 1982 ARC 296, Dr. K.C. Tandon Vs. IXth Additional District Judge, Kanpur Nagar, 1998(1) ARC 589 and Dwarika Nath Soni Vs. Bhagwan Das Gupta, 2003(1) ARC 418.

7. In Jagat Narain Jain (supra) the Court has observed that the Prescribed Authority or Appellate Authority have power to appoint Commissioner for local inspection. The aforesaid power is not to be exercised as a matter of course but after considering various facts and circumstances and applying its mind whether such inspection is necessary or not.

8. In Dr. K.C. Tandon (supra) again the above observations have been reiterated and the Court has further made certain observations of caution that experience has shown that during pendency of appeals under Section 22 of the Act quite often applications are moved for making local inspection or for issuing Commission for local inspection with an oblique motive to delay the hearing of appeal which otherwise is required to be decided within six months and usually arguments are not advanced on merits but there is an insistence to pass order on such applications first before proceeding further in the matter of appeal. The Court observed that unless arguments are advanced on merits it would be difficult to understand and appreciate as to whether a local inspection is necessary or not for extracting the truth and, therefore, an approach should be to address the Court on merits so as to enable it to form an opinion whether local inspection is necessary or not to extract the truth. In para 8 of the judgment the Court observed as under:

"8. Experience has shown that during the pendency of appeals under Section 22 of the Act, quite often applications are moved for making local inspections or for issuing C

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