1. By this petition the petitioner has challenged order dated 21.7.2004 passed by the Vth Civil Judge, Class II, Rewa in Civil Suit No. 31-A/ 2003 rejecting the application of the petitioner filed under Order 26 Rule 9 CPC for appointment of Commissioner.

2. The counsel for the petitioner stated that since the dispute pertaining to Khasra No. 538/3, 539/1 owned by the petitioner plaintiff Suryabhan Singh who claimed to be in possession of the same, respondent No.2 Rambahore Singh challenged the possession in his written statement as well as the ownership and some portions of the said Khasra. Hence the petitioner filed an application for appointment of Commissioner which was essential under the circumstances to resolve the dispute. Relying on Nagpur L.J. 1953 Note 230, as well as Hari Charan v. Ghanshyam Das [MPWN 1988 (2) 23 and Vimla Devi (Smt.) v. Smt. Shanti Bai [MPWN 1999 (1) 193] whereby this Court has held that when there was controversy raised regarding the plaint map and not resolved, interference could be made by the Court and when there was no agreed map filed, identity of disputed land disputed, encroachment also denied the appointment of the local Commissioner was essential. Counsel also relied on Basanta Kumar Swain v. Baidya Kumar Parida and others [AIR 1989 Orissa 118] and stated that the appointment of a Commissioner by the trial Court in exercise of its power cannot be made to assist a party to collect the evidence where it can get the evidence itself. The object however is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record, the Court is satisfied that for appreciating the opinion of expert evidence, it should appoint an expert as Commissioner.

3. Counsel for the respondents on the other hand has stated that Basanta Kumar (supra) itself cautions that where the Court is satisfied with the material available on record the power should not be exercised to create evidence. Whether a party is able to produce the desired evidence or not is dependent on the facts of each case. Relying on Chunnilal v. Ramchandra [MPWN 2002 (I) 105] whereby this Court has held that a commission cannot be issued to ascertain actual possession over disputed property, evidence cannot be collected by issuance of commission, that such an issue can be decided by the Court itself on the basis of evidence and further relied on another case Babu Khan v. Kaptan Singh [1980 (2) MPWN 261] where the Court had observed thus:

''The Court cannot delegate to the Commissioner the trial of any material issue which it is itself bound to try. In other words, a Judge cannot depute to a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of the disputed immovable property, the problem has to be solved by the Court on the basis of the evidence on record."

And the Court had set aside the order appointing the Commissioner.

4. This Court has also consistently taken the view that appointment of Commissioner is to the discretion of the trial Court. Relying on Laxman v. Ramsingh [MPWN 1982 255] whereby this Court held that the relief claimed was discretionary and if the Court below had exercised jurisdiction then by exercising that discretion it could not be said that the Court had committed error of jurisdiction by rejecting that application. Considering Ruel 9 of Order 26 CPC the language itself is very equivocal in its terms as it states that any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and report thereon to the Court. Thus, since the nature of the relief is purely discretionary in nature and then when the Court below was satisfied that the appointment of the Commissioner was not necessary under the