ORDER :

1. The present petition is preferred under Article 227 of the Constitution taking exception to the order dated 11.04.2018 passed by trial Court whereby application preferred by the plaintiff under Order XXVI Rule 9 of CPC for appointment of Commissioner has been rejected.

2. Precisely stated facts of the case are that petitioner/plaintiff filed a suit for declaration and permanent injunction in respect of the suit property against the defendant. It was the allegation of plaintiff that suit property has been purchased by the plaintiff from erstwhile owner and thereafter, moved application for mutation before Tehsildar Gwalior which was allowed in name of plaintiff which was marked in revenue records. The said land was demarcated and plaintiff has the right title, interest and possession over the suit property. However, defendants are trying to sell the land belonging to plaintiff and it appears that they are exceeding the land which is available to them in revenue records. Therefore, the instant suit was filed.

3. Along with the suit, an application under Order XXVI Rule 9 of CPC was filed for appointment of Revenue Officer as Court Commissioner so that demarcation or measurement of the land can be carried out. Approach of trial Court is illegal because application was rejected on the ground that Revenue Officers cannot be appointed as Commissioner for carrying out commission.

4. Learned counsel for the petitioner relied upon Section 129 of Madhya Pradesh Land Revenue Code, 1959 and submitted that Revenue Authority is an appropriate authority. He also referred proviso to Order XXVI Rule 9 of CPC to submit that State Government has made rules in this regard.

5. Heard.

6. The instant case is preferred at the instance of petitioner/plaintiff taking exception to the order dated 11.04.2018 passed by Second Civil Judge, Class-II Gwalior whereby application under Order XXVI Rule 9 of CPC preferred by the petitioner/plaintiff has been rejected.

7. Perusal of impugned order reveals that application has been rejected on the ground that giving direction to the Revenue Officer for local investigation is beyond the purview of trial Court therefore, application was rejected.

8. Here, it appears that purpose of Order XXVI Rule 9 of CPC has not been considered by the trial Court in correct perspective. Order XXVI Rule 9 of CPC is reproduced for ready reference:-

“Order XXVI-Commission-Commission to examine witnesses

9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

9. Proviso reveals that where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. It appears that State Government in exercise of the powers conferred by the proviso Rule 9 Order XXVI of CPC has made the Madhya Pradesh Commission for Local Investigation, Rule 1962. Since these rules are not commonly available therefore, this Court intends to reiterate the complete set of rules (although it is a very brief rule) and for ready reference it is reproduced as under:-

Madhya Pradesh Commission for Local Investigation, Rule 1962

I-Preliminary

1. (1) These rules may be called The Madhya Pradesh Commissions for Local Investigations Rules, 1962.

(2) They shall extend to the whole of Madhya Pradesh.

2. In these rules, unless the context otherwise requires,-

(a) 'Code' means the Code of Civil Procedure, 1908 (V of 1908);

(b) 'Commission' means a Commission issued under Rule 9