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Civil Revision No. 905 of 1986, decided on 14th April, 1986.

---O. XXVI, R. 9‑Commission to make local investigation can be appointed without notice to opposite‑party‑Court when has to give notice to opposite‑party before appointment of such commission, position stated.

Rule 9 of Order XXVI of the Code of Civil Procedure deals with the appointment of Commissions. It has not been provided therein that Commission cannot be appointed without notice to the opposite‑party. It is in view of the facts and circumstances of each case that the Court has to decide whether the Commission should be appointed after notice to the opposite side or otherwise. If the Court finds that the notice would defeat the very purpose for which appointment of the Commission is sought, there will be nothing illegal or irregular in ordering the appointment with out notice to the opposite‑party, but if there is no such apprehension, it would be proper to hear the other side before making the appointment.

In the instant case, it was complained by respondent (plaintiff) that the petitioners were going to throw him out of the disputed property, by force, and thus change the complexion of the whole suit. If the Court bad given notice of application to the petitioners they might have done the mischief apprehended by respondent before the appointment of the Com mission. In the circumstances of the present case, therefore, no illegality or irregularity was committed by the Court in appointing the Commission without notice to the petitioners.

Nakam Qureshi for Petitioners.

This civil revision has arisen out of a suit brought by respondent No. 1 Ghias‑ud‑Din, against the petitioners, Zia‑ud‑Din and others and respon dent No. 2, Mst. Khalida Khanum, for partition of a building. On an application made by respondent No. 1 (plaintiff), under rules I and 2 of Order XXXIX, of the Code of Civil Procedure, the petitioners and respon dent No. 2 were directed, on 12th December 1985, to maintain status quo regarding the property in dispute. On 26th December 1985, respondent No. 1 tiled an application, under rules 9 and 10 of Order XXVI read with section 151 of the Code of Civil Procedure, for appointment of a Commis sioner to ascertain factual position of the property in question. It was alleged by him that on the receipt of notice of the status quo order, peti tioners Nos. 1 and 2 were trying to illegally dispossess him (plaintiff) from the portion of the disputed property in his possession by use of force and with the help of bad characters of the Ilaqa. On the same day, namely, 26th December 1985, the Civil Judge, who was seized of the suit, appointed a Commissioner who has since submitted his report. The petitioners objected to his appointment but their objections were overruled by the learned Civil Judge, vide his order dated the 26th December 1985. This order of, the learned trial Court has been challenged by the petitioners by means of the civil revision in hand.

2. It was contended by learned counsel for the petitioners that the appointment of the Commissioner was void and illegal inasmuch as he was appointed without hearing the petitioners.

3. Rule 9 of Order XXVI of the Code of Civil Procedure deals with the appointment of Commissioner. . It bas not been provided therein that he cannot be appointed without notice to the opposite‑party. It is in view o the facts and circumstances of each case that the Court has to decide whether the Commissioner should be appointed after notice to the opposite side or otherwise. If the Court finds that the notice would defeat the very purpose for which appointment of the Commissioner is sought, there will be nothing illegal or irregular in ordering him appointment without notice to the opposite‑party, but if there is no such apprehension, it would be proper to hear the other side before making the appointment. In the instant case, it was complained by respondent No. 1 (plaintiff) that the petitioners were going to throw him out of the disputed property, by force, and thus change the complexion of the whole suit. If the Court had given notice of application to the petitioners they might have done the mischief apprehended b respondent No. 1 before the appointment of the Commissioner. In the circumstances of the present case, therefore, no illegality or irregularity was committed by the learned Civil Judge in appointing the Commission without notice to the petitioners.

4. It was also submitted by learned counsel for the petitioners that in the impugned order, the learned Civil Judge had made certain remarks before the petitioners could tile objections to the report of the Commis sioner and that by making those remarks he had approved of the report of the Commissioner. Remarks to which exception has been taken by the learned counsel read as follows :‑

"The learned local Commissioner visited the spot after giving the notice to the opposite‑party and in the presence of the defendants and their counsel Mr. Hakim Qureshi, Advocate, the learned local Commissioner carried out the proceedings in which the defendants participated and affixed their signature,"

By making these remarks the learned Civil Judge has, in a way, reproduced relevant portion of the Commissioner's report. If his remarks are factually incorrect, the petitioners would be at liberty to say so, and their objections in this behalf would be duly considered‑by the learned trial Court.

5. In view of the above discussion, I am not inclined to interfere with the order of the learned trial Court relating to appointment of the Commissioner. This civil revision, therefore, fails. If is dismissed in limine.

M. B. A. Revision dismissed.

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