The appointment of a Commissioner for local inspection or scientific investigation is within the judicial discretion of the Court and is not a matter of right for the parties to force the court to appoint a Commissioner.

Sudhir Agarwal,J.

1. Heard Sri Indra Raj Singh, learned counsel for the petitioner and perused the record.

2. Petitioner's application for collecting evidence and appointing Commissioner has been rejected by means of impugned order dated 09.04.2014 passed by Prescribed Authority/Civil Judge (Senior Division), Muzaffar Nagar in P.A. Case No. 12 of 2013.

3. It is contended that under Rule 22 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 petitioner is entitled to seek appointment of Commissioner and the court below in rejecting the same has committed a patent error.

4. I do not find any patent illegality in the aforesaid order, inasmuch as appointment of Commissioner is within the judicial discretion of Court and the same is made to find out certain facts which it finds necessary but it is not supposed to help a party in litigation, to collect evidence.

5. Rule 22 is an enabling provision only. The power of appointing Commissioner and collecting evidence has also been provided in Order 26 of the Code of Civil Procedure and, in my view, the legal exposition laid down therein would squarely apply to the issue raised in present writ petition, which is somewhat similar in nature.

6. 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.

7. 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.

8. Extending aforesaid legal exposition, in the case in hand also, it cannot be doubted that the Court cannot act as an agency to help either of the party to collect evidence. It is for the parties to adduce evidence and if Court so finds necessary it can always appoint Commissioner for finding out spot position but it cannot be insisted upon by either of the party if Court itself does not find it necessary.

9. I, therefore, find no reason to interfere in the impugned order. Dismissed.