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TMI Blog1986 (9) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... arcel of his backyard which was not used by the plaintiff as a passage. There is no dispute as to the disputed land belonging to different plot numbers. 3. Before evidence was adduced in the suit, plaintiff filed an application for appointment of a Commissioner for local investigation. In spite of resistance by the defendant, the prayer was allowed. The following order was passed : 12-3-86. Both parties filed haziras. The petition under Order 26, Rule 9, C.P.C. filed by the plaintiff and the counter thereto are put up. Heard. It will elucidate the matter if the Commissioner inquires into the matter. Hence, the petition, under Order 26, Rule 9 C.P.C. is allowed, plaintiff to deposit a sum of ₹ 50/- towards Commissioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it does not improperly assist a party by collection of evidence when such party is capable of adducing such evidence himself, since report of the Commissioner has no greater sanctity than any other evidence in the case. In the light of this principle the various decisions have been rendered which require no reference. Thus, appointment of a Commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. Merely because the matter in dispute can be elucidated by issue of writ to a Commissioner, the power under Order 26, Rule 9, C.P.C. is not to be exercised freely. 7. The power to appoint a Commissioner under Order 26, Rule 9, C.P.C. is wide. Wider the power, greater should be the restraint. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rments made by the parties and in view, of the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case..... The aforesaid passage makes it clear that local investigation by a Commissioner can be made in exercise of the power under Order 26, Rule 9, C.P.C. where visit to the spot is necessary. That would be a local investigation requisite or proper. When the report would be necessary to appreciate the evidence on record, a commission can be issued in proper case. Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures from the normal rule for issue a commission also. For illustration : Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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