R.C. Patnaik, J.
1. This revision is directed against an order passed by the additional Munsif, Kendrapara refusing to appoint a civil court commissioner for local inspection under the provision of Order 26, Rule 9 of the Civil P. C.
2. The controversy between the parties was as to the location of a wall, namely, whether it stood on west of plot No. 306 or on the east of plot No. 307. The learned Additional Munsif rejected the petition filed by the plaintiff-petitioner for local inspection. The application was rejected as premature with the observation that if it was considered necessary, commissioner would be appointed after evidence was closed.
3. Though the question of law is a simple one, it requires elaboration having regard to some stray observations in some judgments that the Court can refuse to appoint a commissioner under the provision of Order 26, Rule 9 and require the party to adduce evidence through a private Amin after getting the land measured by him.
4. Order 26, Rule 9 of the Civil P. C. reads as under : —
“Rule 9. Commissions to make local investigation.
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 the marked value of any property, or the amount of any mesne profits or damages or annual net profits, 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:
Provided that, where the State Government has made ules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”
No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression ‘deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute………’ Therefore, where the Court
considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage, or if the motion is mala fide or in circumstances justifying refusal. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence.
Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot. (See Amulya Kumar Samaddar v. Ananda Charan Das, AIR 1933 Cal 475 and in P. Moosa Kutty, -AIR 1953 Mad 717). In such cases local investigation and measurement are essential. Evidence in
respect thereof can be laid by engaging a person qualified to conduct the investigation and measurement privately. But there are some difficulties. While doing the survey, the person has to take measurements from various points. In course of such investigation it may be necessary for him to enter upon land and premises of the other party and he may be resisted by the latter, whereas neither of the parties can resist the commissioner appointed by the Court from carrying out the writ. I am, therefore, of the view that where local investigation is considered necessary/ Court should not ordinarily refuse to appoint a commissioner for the purpose of elucidating any matter in dispute between the parties.
5. When the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal. Hence, ordinarily in such type of cases local investigation should not be deferred to a stage after the closure of evidence. I do not mean thereby that in no circumstances can local investigation be sought after the evidence is closed. But ordinarily it should be done before the parties adduced evidence. Hence, I do not accept the contention of Mr. B. Patnaik that inasmuch as the party has a right to and can adduce evidence of a survey knowing person engaged by him privately with reference to identification of location, it is open to the Court to decline to appoint a commissioner for local investigation under Order 26, Rule 9. In this case the controversy can be resolved by locating the wall upon measurement, that is to say, whether it stood on plot No. 306 or plot No. 307. So, the local investigation is essential. The learned Munsif having failed to exercise jurisdiction vested in him, I interfere and vacate the impugned order. He is directed to appoint a survey knowing, commissioner.
6. In the result, the revision is allowed but in the circumstances without any order as to costs