Court sets aside order for civil court commissioner in property dispute, emphasizes discretion in appointment

The court set aside the trial court's order directing the appointment of a civil court commissioner for a local investigation of disputed property, finding that the trial court did not properly consider if the plaintiff was unable to ascertain the boundary by engaging an expert. The court emphasized that the discretion to appoint a commissioner should be judiciously exercised, and in this case, it was not a just occasion for such an appointment. The judgment clarified that evidence obtained through a commissioner is not binding and may be considered along with other evidence in the case.

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Issues:
1. Appointment of a civil court commissioner for local investigation of disputed property.

Analysis:
The judgment deals with a civil revision where the defendant challenges an order directing the appointment of a survey knowing civil court commissioner for a local investigation of disputed property. The court examines the power vested in it under Order 26, Rule 9, C.P.C., to depute a commissioner for local investigation to elucidate matters in dispute. The discretion to appoint a commissioner is to be exercised judiciously, considering the facts and circumstances of the case to determine if it is a just occasion for such an appointment.

The court cites previous decisions to emphasize the purpose of local investigation under the rule, which is to obtain evidence best acquired from the spot. The judgment highlights that the court may appoint a commissioner when a party is unable to produce desired evidence due to reasonable circumstances. However, such evidence obtained through a commissioner is not binding on the court and should be considered along with other evidence in the case.

Regarding the scope of revisional power, the judgment distinguishes between cases where the application for a commissioner is refused and where a commissioner is appointed. It notes that if a commissioner is appointed and their report becomes evidence, the appellate court cannot disregard such evidence. Therefore, the revisional power may be exercised in deserving cases.

In this specific case, the court finds that the trial court did not apply judicial mind while appointing the commissioner. It notes that the trial court failed to consider if the plaintiff was unable to ascertain the boundary by engaging an expert, leading to an irregular exercise of jurisdiction. Consequently, the court sets aside the trial court's order as unsustainable, allowing the civil revision with no costs imposed.

The judgment also addresses a submission by the opposite party's counsel regarding the grounds of the civil revision not being urged in the pleading. The court clarifies that rules of pleadings are not strictly applicable to a revision application, rejecting the submission and proceeding with allowing the civil revision and setting aside the trial court's order.

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