Local investigation commission under CPC requires judicial discretion and necessity; appointment without proper inquiry is vulnerable to revision.
Order 26 Rule 9 CPC permits local investigation only where it is requisite or proper to elucidate a dispute, and the discretion must be exercised judicially on the facts. A commissioner is not meant to help a party collect evidence it can obtain itself; appointment is justified where spot-based evidence, expert assistance, or inability to produce evidence for reasonable cause is shown. The commissioner's report then becomes evidence, so improper appointment may cause material irregularity. On these principles, the trial court's failure to consider whether the party could itself obtain the boundary evidence rendered the appointment vulnerable to revisional interference and set aside the order.
Issues: Whether appointment of a survey-knowing commissioner for local investigation under Order 26 Rule 9 of the Code of Civil Procedure, 1908 was justified and whether the revisional court should interfere with the order appointing the commissioner.
Analysis: Order 26 Rule 9 empowers the court to depute a commissioner for local investigation only where it is requisite or proper for elucidating a matter in dispute. The power is discretionary and must be exercised judicially on a careful appraisal of the facts. Local investigation is meant to obtain evidence which, by its peculiar nature, can best be obtained from the spot, and it is not intended to assist a party in collecting evidence which it can procure itself. A commissioner may be appointed where expert assistance is needed to appreciate evidence already on record or where a party is unable, for reasonable cause, to produce the desired evidence. Once appointed, the commissioner's report becomes evidence, and in appropriate cases revisional interference is available because refusal of appointment can be challenged in appeal, whereas improper appointment may introduce evidence that cannot otherwise be effaced. In the present case, the trial court did not apply judicial mind to whether the plaintiff was unable to ascertain the boundary by an expert engaged by him, and the order was therefore made with material irregularity.
Conclusion: The order appointing the commissioner was unsustainable and liable to be set aside. Revisional interference was justified.
Final Conclusion: The civil revision succeeded and the trial court's order appointing the commissioner was set aside, with no order as to costs.
Ratio Decidendi: A commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 may be appointed only on a judicially exercised discretion for genuine local investigation, and an order made without considering whether the party can itself obtain the necessary evidence is liable to be interfered with in revision for material irregularity.
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