The main legal point established in the judgment is the admissibility of the report and evidence taken by the Commissioner as evidence in the suit, as well as the maintainability of the application for recording the statement of the Commissioner.

Ram Surat Ram (Maurya), J.

1. Heard Sri Rama Shanker Singh, for the petitioners and Sri R.P. Misra-II, for the respondents.

2. The writ petition has been filed for quashing the order of Additional Civil Judge (SD) dated 11.12.2013, rejecting the application of the petitioners for summoning Advocate's Commissioner for recording his statement as witness and order of District Judge 14.03.2014, dismissing the revision filed by the petitioners from the aforesaid order.

3. Kaushal Kishore Tewari (now represented by the petitioners) filed a suit (registered as R.S. No. 63 of 2000) for permanent injunction, restraining Har Prasad Tewari and others ( the defendants-respondents) from interfering in his possession over plot 366 situated in village Kathwara, pargana Mohana, district Lucknow and for realization of Rs. 5000/-along with interest as damages for demolishing structures lying upon the land in dispute. In the plaint, the plaintiff stated that he was owner of the land in dispute and constructions lying upon it, which was bounded by boundary wall. In the southern side of plot 366, house of the defendants was lying on plot 367. Main gate of the house of the defendants was in southern side and there was one door in eastern side of their house. In order to grab the land of the plaintiff, the defendants demolished wall of the house of the plaintiff in the night of 27/28.12.1999 and they were removing the bricks and wastage from the spot.

4. Along with the plaint, the plaintiff also filed and application for interim injunction and another application for issue of Advocate Commissioner for service of notice, interim order on the defendants and for inspection, measurement of the disputed property and making site plan and note the various things lying over the land in dispute. Trial Court by order dated 23.02.2000 issued Advocate Commissioner, who inspected the spot on 27.02.2000 and submitted his report dated 27.02.2000. The defendants filed their objection against the Commissioner's report dated 27.02.2000. Trial Court by order dated 26.11.2002, held that as the commissioner was issued under Order 39 Rule 7 C.P.C. and not under Order 26 Rule 9 C.P.C. as such it is not proper to confirm the report but the report was kept on record.

5. The petitioners filed an application dated 07.09.2013 for summoning Advocate's Commissioner for recording his statement as witness. The defendants filed their objection to the aforesaid application. The application was heard by Trial Court, who by order dated 11.12.2013, held that as by order dated 26.11.2002 the report was not confirmed but it was only kept on record. The order dated 26.11.2002 was not challenged by the plaintiff as such there is no justification for summoning Advocate's Commissioner and recording his statement as witness. On these findings the application was rejected. The petitioner filed a revision (registered as Civil Revision No. 64 of 2014) from the aforesaid order. The revision was dismissed by District Judge by the order dated 14.03.2014 on the ground that revision was not maintainable as filed against interlocutory order. Hence this writ petition has been filed.

6. The counsel for the petitioners submitted that the application dated 23.02.2000 was filed under order 26 Rule 9 C.P.C. for spot inspection, making measurement of the disputed property and making site plan and to note the various things lying over the land in dispute. The Commissioner, in report dated 27.02.2000, reported various things on the spot, which are vital evidence to prove title and possession of the petitioner over the land in dispute. In such circumstance, the application was filed by the petitioners for summoning Advocate's Commissioner for recording his statement under Order 26 Rule 10 (2) C.P.C. The respondents will get opportunity of cross examination. Only on the ground that report was exparte, the application could not be rejected. Although the report was not confirmed but it was not rejected and