Court commissioner appointment requires genuine need for local investigation and cannot replace party evidence under CPC.

A court commission for local investigation may be issued only where the facts genuinely require elucidation and the court exercises its discretion judicially under Section 75 and Order XXVI Rule 9 CPC. The commission cannot be used as a substitute for evidence that parties must lead themselves. Order XXXIX Rule 7 CPC is a separate provision for preservation, inspection and related interlocutory measures, and did not justify the appointment on the facts stated. The application, read by its substance, did not warrant local investigation, and there was also lack of proper notice before treating it under Order XXXIX Rule 7. The impugned appointment of the Commissioner was therefore set aside and the appeal was directed to be decided expeditiously after hearing the parties.

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Issues: Whether appointment of a Court Commissioner could be sustained under Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908, or under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908, in the facts of the case.

Analysis: Section 75 of the Code of Civil Procedure, 1908 empowers the court to issue commissions, including for local investigation, but the power is discretionary and must be exercised judicially. Order XXVI Rule 9 of the Code of Civil Procedure, 1908 permits a commission only where a local investigation is requisite or proper to elucidate a matter in dispute or ascertain specified matters. A commission is not a substitute for evidence that the parties must themselves lead. Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 is a distinct provision dealing with detention, preservation, inspection, observation and related interlocutory measures, and could not justify the impugned appointment on the facts. The application before the appellate court, when read by its substance, did not warrant a commission for local investigation, and the parties had not been given proper notice that it would be treated as an application under Order XXXIX Rule 7.

Conclusion: The order appointing the Commissioner was unsustainable and was liable to be quashed.

Final Conclusion: The writ petition succeeded, the impugned order appointing the Commissioner was set aside, and the first appellate court was directed to decide the appeal expeditiously after hearing the parties.

Ratio Decidendi: A court commission for local investigation may be issued only when the facts genuinely require elucidation through judicially exercised discretion, and it cannot be used to gather evidence that the parties themselves must prove by ordinary trial evidence.

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