B.L. Yadav, J. - (1.) BY this writ petition, under Article 226 of the Constitution of India, prayer is that by issuance of a writ of Certiorari, order dated 17th of February, 1993, Passed by Mr. S.K. Saxena, IVth Additional District Judge, Agra, Annexure No. 8 to this writ petition, rejecting the application of the Petitioners for appointment of an Advocate Commissioner, be quashed.
(2.) WHAT is the ambit of the power of the Court, particularly, an appellate Court in passing an order for issuance of a Commission to make local investigation under Order XXVI Rule 9, of the Code of Civil Procedure, 1908 (Compendiously the 'Code') is short question for determination. The present petition is filed by the Petitioners who are Appellant -Defendants is Civil Appeal No. 82 of 1992 against the judgment and order dated 20.5.1992 pending before IVth Additional District Judge, Agra. The arguments in the Civil Appeal were heard and a date for delivery of judgment was fixed. On 12.2.1993, the date fixed for delivery of judgment, the Petitioners moved an application 34 -C, under order XXVI Rule 9 of the Code, for the appointment of a senior Advocate as Commissioner for inspection of the house of the Plaintiff -respondent No. 2, which has been converted in to a hotel. The original Civil Suit No. 206 of 1999 was filed by the Plaintiff -respondent No. 2, before Ist Additional Munsif, Agra, claiming relief of permanent injunction and directing the Defendants Petitioners not to fix any door on the Southern Gali of the Plaintiff's house No. 25/36 A, Chakkipat Chhipitola Rakabganj, Ward, Agra, and that the Defendants -petitioners be restrained not to obstruct the Petitioner's passage, including his gate, which is shown by letter M N 0 in the plaint map, The Petitioners, the Defendants, have contested the aforesaid suit and issues framed where; As to whether Plaintiff -respondent No. 2 has a right to access as alleged; as to whether alleged gate has already installed, as to whether there has been any compromise between the parties; and whether the suit is barred by estoppel and acquiescence,
(3.) THE suit was decreed by the judgment and decree dated 20.5.1992. Against that decree, the first appeal was filed in the lower appellate Court, which is pending and in that appeal, an application for appointment of a senior Advocate as Commissioner was filed on the date of delivery of judgment, which has been dismissed by the impugned order dated 17.2.1993. Mr. K.L. Grover, learned Counsel for the Petitioners urged that the provisions of Order XXVI Rule 9, of the Code, were quite comprehensive as the Plaintiff -respondent No. 2 has converted his residence into a Hotel, hence to ascertain that facts appointment of a Senior Advocate as Commissioner was imperative and the learned IVth Additional District Judge, Agra, has committed a manifest error apparent on the face of the record in rejecting the said application by the impugned order. 6. Mr. Madhav Jain, learned Counsel for the Plaintiff -respondent No. 2. has however, refuted the aforesaid submissions and urged that the object of Order XXVI, Rule 9 was to issue a Commission and that the issuance of the Commission is in the discretion of the Court and that too at the proper stage before either the suit is decided by the appellate Court or appeal is heard on merits, that application can be moved just with a view to ascertain and elucidate any matter in dispute, but the present application, on behalf of the Petitioner, was moved on 12.2.1993, when the appeal was listed for the delivery of judgment. The appeal has already been heard earlier on 9.2.1993, and 12.2.1993 was the date fixed for delivery of judgment and on that date an application for issuance of Commission was moved just with a view to delay the proceedings and even if assuming though not conceding the point that the Plaintiff - Respondent. No. 2 has converted his residence in a Hotel, nevertheless that was not the controversy in the suit rather the controversy was regarding obstruction created by the Defendants the present Petitioners, in the Gali, which was public lane to the south of the residence of the Plaintiff -respondent No. 2. The Defendants Petitioners were creating obstruction is that Gali, in respect of which proceeding under Section 133/139 of the Code of Criminal Procedure have also been initiated. Consequently, and change of residence by the Plaintiff -respondent is not in controversy, Consequently, issuance of the Commission to ascertain these facts is beyond the scope of enquiry under Order XXVI, Rule 9 of the Code. 7. Having scrutinized submissions of the learned Counsel for the parties, the points for determination are: whether the application of the Petitioners; for issuance of the Commission, to ascertain the nature of the possession in the residential house, now converted, according to the Petitioners, into a hotel, could be allowed; and the second point emerging from the earlier one is what is the ambit of the Order XXVI Rule 9 of the Code. 8. Ex Abundanti Cautela statutory provisions of Order XXVI Rule 9 are set out: 9. Commissions to make local investigations: 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 market -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 rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. A bare reading of the aforesaid provisions indicates that power to issue a Commission to make local investigation is the discretionary power of the Court and that also, just with a view to elucidate any matter in dispute, No doubt, that the discretionary power has to be exercised not at the whims of the court, but in accordance with the principles of law. In its collective wisdom, the legislature has enacted Order XXVI Rule 9, very carefully. 9. The first condition is that the Court must first satisfy that the local investigation is requisite and that power is qualified with subsequent, clause and the local investigation must be for the purpose of elucidating any matter in dispute. 'Elucidating' in common parlance means making easier to understand. What is required by the second clause is that the Court must require the local investigation so that any controversy in dispute may be easily appreciated. There is another condition that during pendency of suit or appeal the commission. When the hearing of the appeal has concluded and it was listed on 12.2.1993 for delivery of judgment. Can it be said that the suit was still pending and it was open to the Petitioners to make an application. 10. In other words, the object of local investigation is not so much to collect evidence, which may be taken in the Court, but just to facilitate the appreciation of the evidence led or nature of the controversy between the parties or to facilitate appreciation of any point, which is left doubtful in the evidence of the parties before the Court. The object of issuance of Commission is that some assistance may be driven from those facts found actually after the investigation by the Commissioner on the spot, but that investigation must be in respect of the matter in dispute and not otherwise. The legislature required that the discretion of the Court can be exercised following all conditions with a view to obtain certain facts investigated by the commissioner, which promises peculiar facts and which can be had from the spot inspection itself, but that must be directly in respect of any matter in dispute. This is with a view to enable the Court to properly and correctly appreciate evidence on record. The report of the Commissioner clarifies and explains any point which might appear to be doubtful after the evidence has been led by the parties. The provision of Order XXVI Rule 9, presuppose evidence, lead by parties, which requires elucidation. 11. In Present petition, if the aforesaid principles contemplated by Order XXVI Rule 9, are applied, first requisite condition is that the Court must be satisfied in its discretion that the local investigation is must and that it is with a view to explain or facilitate any matter in dispute. The matter in dispute was obstruction created by the Defendants in the Gali or public lane running to the South from the residence of the Plaintiff - Respondent No. 2. The residential house of the Plaintiff - Respondent No. 2 was not in dispute, as there was no controversy between the parties. With a views to ascertain the nature of the controversy, the parties. With a view to ascertain the nature of the controversy, the parties were directed to file a copy of the judgment of the Trial Court. Consequently, typed copy of the judgment was filed by the Petitioners, that indicates that out of five issues, first issue was as to whether the Plaintiff has a right to access. The Second issue was whether the alleged gate has already been installed the third issue was whether there was any compromise between the parties and the fourth issue was whether the suit was barred by estoppel and acquiescence. In this way, it is obvious that the Plaintiff -respondent has a right to access through that lane and the alleged obstruction created by the Defendants -petitioner was in dispute. There was no dispute in respect of the residential house of the Plaintiff -respondent No. 2 nor its conversion into a Hotel, as stated by the Petitioners, nor the title of the Plaintiff -respondent No. 2. In this way, his residential house was beyond the pale of controversy.;