Full Judgment
ORDER:
This civil revision petition arises out of order, dated 23.01.2012, in I.A.No.258 of 2010 in O.S.No.1378 of 2004, on the file of the learned XI Additional Junior Civil Judge, City Civil Court, Secunderabad.
O.S.No.1378 of 2004 filed by the respondents for recovery of possession was decreed. The respondents also filed I.A.No.258 of 2010 for ascertaining mesne profits by appointing an Advocate Commissioner. By order, dated 23.01.2012, the lower Court has appointed the Advocate Commissioner for recording the statements of the owners and tenants of similarly situated neighbouring properties and submitting a report on the prevailing rents in the vicinity.
Sri C.Suman, learned counsel for the petitioner, argued that since there is sufficient evidence on record showing prevailing rent, there was no need for appointing an Advocate Commissioner. He has placed reliance on the judgment of the Orissa High Court in Basanta Kumar Swain v. Baidya Kumar Parida and others AIR 1989 Orissa 118 in support of his submission that an Advocate Commissioner cannot be appointed for collecting evidence.
Sri R.Chandrasekhar Reddy, learned counsel for the respondents, opposed the above submission and argued that under Order XXVI Rule 9 CPC, the Court is empowered to appoint a Commissioner inter alia for ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits. He placed reliance on the judgment of the Orissa High Court in K.Raghunath Rao v. Smt.Tumula Jailaxmi AIR 1988 Orissa 30.
I have carefully considered the submissions of the learned counsel for the parties with reference to the case law cited by them.
For better appreciation, Order XXVI Rule 9 is re-produced hereunder:
“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.”
From the above quoted provision, it is evident that some of the purposes for which an Advocate Commissioner is appointed are to ascertain the market value of any property or the amount of mesne profits or damages or annual net profits through local investigation.
The settled proposition of law is that ordinarily an Advocate Commissioner shall not be appointed to collect evidence in support of or against any party. In Basanta Kumar Swain (1 supra), an Advocate Commissioner was sought to be appointed for holding local investigation of the disputed property and submit a report as to whether the disputed property is within the plaintiff’s plot or in the defendant’s plot. In the context of such a dispute, the High Court held that the object of Order XXVI Rule 9 CPC is not to assist a party to collect evidence where it can get the evidence itself, that where the Court is satisfied on the material available on record that a party is not able to produce the desired evidence for genuine reasons, it may assist the party by appointing an Advocate Commissioner to get the evidence and that however such evidence is not binding on the Court which is to appreciate the same along with other evidence. The same learned Judge in K.Raghunath Rao (2 supra), however, referred to the earlier judgment of the Orissa High Court in Debendranath Nandi v. Natha Bhuiyan AIR 1973 Orissa 240, wherein it was held as under:
“…The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The trial Court’s decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments 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…”
Though the judgments referred to above appear to be in conflict with each other, the provisions of Order XXVI Rule 9 need to be construed in the light of the facts of each case and the purpose for which appointment of Advocate Commissioner is sought. In the instant case, the lower Court after considering the entire record felt it necessary to appoint an Advocate Commissioner to collect evidence with respect to the prevailing rent for determining the mesne profits. This being one of the objects of the provisions of Order XXVI Rule 9, the discretion exercised by the lower Court cannot be said to be improper. Even if some evidence is available before the Court, if it feels that such evidence is not sufficient to arrive at a proper and correct conclusion, there is nothing wrong to appoint an Advocate Commissioner for gathering further material on the basis of which the mesne profits can be ascertained with more certainty and precision.
In this view of the matter, I do not find any reason to interfere with the order of the lower Court. The civil revision petition is accordingly dismissed.
As a sequel to dismissal of the civil revision petition, interim order, dated 22.02.2012, shall stand vacated and C.R.P.M.P.Nos.1116 and 1516 of 2012 shall stand disposed of as infructuous.