ORDER

Both these writ petitions though arise out of different orders passed in two different civil suits but petitioner herein is defendant in both the suits and since similar applications under Order 26 Rule 9 of CPC preferred by petitioner/defendant in both the suits have been dismissed, both these petitions are being decided by this common order.

2. Learned counsel for the rival parties are heard on the question of admission so also on final disposal.

3. The facts of the case reveal that two different suits bearing Civil Suit No.85A/12 and Civil Suit No.86A/12 were preferred by respondent No.1 in WP No.11883/2017 and respondent No.1 in WP No.11878/2017, respectively. The Civil Suit No.85A/12 sought a decree of declaration and possession in regard to suit land comprised in Survey No.70/3 and 70/9 whereas the suit No.86A/12 sought the same decree but in respect of suit land bearing Survey No.70/4 and 70/10. The suit land in respect of both the suits were situated in Village Navalgaon, Patwari Halka No.31, Tehsil Seoni Malwa, District Hoshangabad. A further prayer in the suit was sought by the plaintiff/respondent No.1 herein of being handed over possession of the land earmarked by demarcation report dated 14.06.2012 in both the suits. The consequential prayer of decree for permanent injunction was also sought against the petitioner/defendant in both the suits.

4. The petitioner/defendant filed a written statement inter alia disputing authenticity of the demarcation report dated 12.04.2012 in both the suits, on the ground that the said report was prepared in the absence of defendant/petitioner herein without following due process of law.

4.1 During the pendency of both the suits, an application under Order 26 Rule 9 of CPC preferred by the defendant No.1/petitioner herein seeking appointment of a Commissioner for spot inspection and submission of report by contending that since the issue essentially pertains to encroachment and related to boundary dispute, the Commissioner’s report after local inspection would assist to reveal the truth.

4.2 The plaintiff/respondent herein denied all contentions made in the application under Order 26 Rule 9 CPC.

4.3 The impugned order rejecting the said applications of the defendant No.1/plaintiff herein in both the suits was passed on 07.07.2017 in Civil Suit RCSA/86/12 and on 27.07.2017 in RCSA/85/12.

5. Both the impugned orders in both the civil suits assigned same reason for rejection of application under Order 26 Rule 9 CPC, that the defendant has not filed any counter claim and that since the suit is based on the demarcation report dated 14.06.2012, the defendant No.1/petitioner herein are free to assail the genuineness of the said report during adducing of evidence.

6. It is noticeable from reading of both the impugned orders in both the civil suits that the Court below despite finding the issue to be related to boundary dispute between the rival parties chose not to allow the application under Order 26 Rule 9 CPC.

7. The provisions of Order 26 CPC relates to Commission whereas Rule 9 in this Order is meant for the purpose of elucidating any matter in dispute to appoint a Commission for conduction of local investigation. Rule 10 of Order 26 CPC prescribes procedure to be adopted by the Commission appointed under Rule 9. The trial Court is further empowered to examine the Commissioner so appointed on either finding the contents of the report to be unsatisfactory or the procedure adopted to prepare the report to be not in accordance with law. The trial Court has further powers to direct inquiry as it deems fit.

7.1 This provision under Order 26 Rule 9 CPC is in the form of one of the aids and means provided to the trial Court to achieve the ultimate object of ascertaining the truth. Thus, invocation of Order 26 Rule 9 CPC is to be made depending upon the facts and circumstances of each case. Though no straitjacket formula can be laid down as a guiding principle but the ultimate object sought to be