Ex parte local investigation commissions are valid when parties can participate before the commissioner and challenge the report at trial.

A local investigation commission under Order 26 Rule 9 CPC may be issued ex parte, because the rule does not require prior notice before appointment; the procedural safeguard is that parties should be directed to appear before the commissioner. Here, the defendant in fact participated in the enquiry, so the appointment was not illegal. The commissioner's report and plan also were not inadmissible merely because the commission was issued without prior notice; the report forms part of the record, remains open to objection, and its correctness may be tested by examining the commissioner or other witnesses. The revision petition therefore failed.

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Issues: Whether a commission for local investigation under Order 26, Rule 9 of the Code of Civil Procedure, 1908 could be issued ex parte without prior notice to the opposite party, and whether the commissioner's report and plan were inadmissible in evidence on that ground.

Analysis: The power to order local investigation is discretionary and is intended to secure evidence that can properly be obtained on the spot. Rule 18 requires the court, when issuing a commission, to direct the parties to appear before the commissioner, but it does not compel prior notice before the commission is issued. The record showed that the defendant was in fact present before the commissioner and participated in the enquiry, satisfying the procedural safeguard contemplated by the rule. As to evidentiary value, the commissioner's report does not become evidence automatically in all respects; it forms part of the record under Rule 10, remains open to objection, and may be tested by examining the commissioner or other witnesses. The defendant could challenge the correctness and credibility of the report at trial.

Conclusion: The ex parte order appointing the commissioner was not illegal, and the report and plan were not liable to be rejected merely because the commission was issued without prior notice. The revision petition failed.

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