Point of Law: Under Order XXVI Rule 10 report of Commissioner and evidence taken by him is a piece of evidence.

ORDER :

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.

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.

(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 10B, 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 10B of the Civil Procedure Code, 1908 (Code, for Short) reads as under:

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 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 Court can appoint the Commissioner for local insp