In a suit for mandatory injunction for removal of the

alleged encroachment on the suit road, to prove the

encroachment,

the

plaintiff

filed

an

application

for

appointment of the Commissioner for local inspection.

Accepting the objection by the first defendant, the Trial

Court rejected the application, on the ground that the

application filed before the completion of the trial is

premature.

The liberty is granted to file a fresh application, after

the completion of the trial, provided there is any ambiguity

in the evidence.

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2.

Learned counsel Sri Mahantesh Patil, appearing

for the petitioner would submit that, the plaintiff is

complaining about the encroachment on a portion of the

suit road, and the defendant has denied the allegation of

encroachment, both in the written statement as well as in

the cross-examination of the plaintiff. The plaintiff with a

view to produce best possible evidence moved an

application for local inspection. This being the position, the

order rejecting the application for appointment of a Court

Commissioner for local inspection is unsustainable.

3.

Learned counsel Sri Sanjay Kulkarni, appearing

for the first respondent opposed the petition contending

that;

(a)

The

application

for

appointment

of

a

Commissioner for local inspection in a suit for a

permanent injunction is impermissible.

(b)

If the Commissioner is appointed and the

report is secured, the same amounts to

collection

of

evidence

which

is

also

impermissible.

4

(c)

The application for local inspection before

completion of the trial is not contemplated in

the scheme of Order XXVI of the Code.

4.

Though

the

application

is

filed

under

Order XXVI Rule 10-B, of the Code, the contentions raised,

have to be necessarily examined in the backdrop of the

provisions applicable for local inspection, i.e., Order XXVI

Rules 9 and 10 of the Code. In the backdrop of the

contentions raised, the court has to answer three

questions.

(a)

Whether the appointment of a Commissioner

for local inspection amounts to collection of

evidence?

(b)

Whether the application for appointment of a

Commissioner for local inspection can lie

before the commencement of the trial.

(c)

Whether the Commissioner for local inspection

can be appointed in a suit for an injunction?

5.

Order XXVI Rule 9 and 10-B of the Civil

Procedure Code, 1908 (Code, for Short) reads as under:

5

Rule 9 of Order XXVI of Code of Civil

Procedure

-

Commissions

to

make

local

investigations. - In any suit in which the Court

deems a local investigation to be requisite or proper

for

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.

(3) Commissioner may be examined in

person.- Where the Court is for any reason

dissatisfied

with

the

proceedings

of

the

Commissioner, it may direct such further inquiry to

be made as it shall think fit.”

Rule 10B Order XXVI of Code of Civil

Procedure

1908

Commission

for

the

performance of a ministerial act.

(1) Where any question arising in a suit

involves the performance of any ministerial act which

6

cannot, in the opinion of the Court, be conveniently

performed before the Court, the Court may, if, for

reasons to be recorded, it is of opinion that it is

necessary or expedient in the interests of justice so

to do, issue a commission to such person as it thinks

fit, directing him to perform that ministerial act and

report thereon to the Court.

(2) The provisions of rule 10 of this Order shall

apply in relation to a Commissioner appointed under

this rule as they apply in relation to a Commissioner

appointed under rule 9.

6.

Under Order XXVI Rule 9 of the Code, the

Co