This Civil Revision Petition arises out of an order made by the learned District Munsiff, Parappanangudi, in I.A. No. 1363 of 1952 in O.S. No. 245 of 1952, filed under Order 26, rule 9, Code of Civil Procedure.

The facts are:P. Amarankutti of Kodinhi Amsom filed the suit for a declaration that he is entitled to a right of easement to pass through a specified portion of Moosakutty’s paramba to his house close by and that he has been in possession of the alleged pathway and that this Moosakutty has demolished a bund on the pathway and for an injunction and damages. The plaintiff filed along with his plaint an application on 8th October, 1952, for the issue of a Commission to make a report about, the condition of the pathway and the damages alleged by him to the bund. This application for the appointment of a Commissioner for local investigation under Order 26, rule 9, Code of Civil Procedure, was ordered ex parte and a Commissioner, an advocate of the Court, was appointed to prepare a plan of the plaintiff’s as well as the defendant’s property and to make a report of what he saw concerning the alleged demolition of the bund. This order was passed on 9th October, 1952 and the Commission was made returnable on 28th October, 1952 and the Commission warrant was ordered to issue on the plaintiff depositing Rs. 25. On 12th October, 1952, at about 9 a.m. the Commissioner went to the spot and he enquired among others this defendant Moosakutty and/ then drew up a plan and submitted his report regarding the condition of the bund as called for; On receipt of this report final order was passed on 28th October, 1952 “Commission issued returned executed. Petition closed.” The defendant after appearing in Court obtained copies of the application by the plaintiff and the plan and report of the Commissioner. This plan and report are obviously very inconvenient from the point of view of this defendant. Therefore he has come forward with this revision petition stating that if the plan and report filed by the Commissioner are used in evidence in the case, he would be greatly prejudiced as they are one-sided and that the order of the learned District Munsiff appointing the Commissioner without notice to him and hearing him, is illegal and opposed tp the provisions of Order 26, rule 18, Code of Civil Procedure. Therefore, he has filed this revision petition against that order which has been executed and what is really more important for him is to get a stay of the trial of the suit on that pretext, obviously to protract the proceedings and wear out the opposite side.

The short point for our consideration is the scope of Order 26, rule 18, Code of Civil Procedure and whether it bears out the interpretation which is sought to be placed upon it by the learned Advocate, Mr. K.P. Ramakrishna Ayyar. In the Civil Procedure Code there are two provisions for issuing Commissions for local investigation, viz., when the suit is instituted, and after the suit is instituted Order 26, rule 9 states:-

“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.....damages.....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.”

The object of this local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its very peculiar nature can only be had on the spot: Amulyakumar v. Anandacharan1. The Court has a discretion to order local investigation or not; it is not bound to order it in all cases: Ram Brichh v. Mahommed Saheb2. In any event, an application under this rule must be made before the case is closed. The form prescribed for Commission for local investigation is set out in Form No. 9 in Appendix H of the Code of Civil Procedure. The form states:

“Whereas it is deemed requisite for the purpose of this suit, that a co