ALOK SHARMA,J. - (1.) Heard counsel for the petitioners-defendants (hereafter 'the defendants') and perused the impugned order dated 17.1.2018 whereby Court Commissioner has been appointed for local inspection of the suit property by resort to the court's power under section 151 CPC as also it would have been by invoking Order 39, Rule 7 CPC as the application under Order 39, Rule 1 and 2 CPC is still pending.
(2.) Mr. Deepak Sharma appearing for the defendants submitted that the impugned order dated 17.1.2018 is vitiated for reason of it not requiring the Commissioner from making a report as to possession of the suit property and only requiring him to report on the constructions, if any, on the suit property. Counsel submitted that in the course of local inspection the possession as found by the Court Commissioner ought to have been required to be reported in the inspection report to the trial court.
(3.) The order for appointment of a local Commissioner under 151 CPC or under Order 39, Rule 7 CPC is a matter of the trial court's discretion to be exercised in respect of the facts of which it seeks information. In the instant case the plaintiff applicant asserted that the suit property was one over which constructions had been made while the defendant's case was that it was vacant land. In the circumstances, the trial court while appointing the Commissioner therefore directed that only report as to constructions or absence thereof over the suit property be made. Report of the possession was not apparently sought as the issue of possession over the suit property was a matter for the parties to themselves establish at the interlocutory stage from their affidavits and documents relied upon and it was not the function of the trial court through its local commissioner to obtain any report-thereon.;