1. This Revision Petition is directed against the order made on I.A.III filed by the defendant in O.S. 5354/80 on the file of the 7th City Civil Judge, Bangalore.
2. I.A. III was filed for appointment of a Commissioner for measuring and demarcating the suit schedule property with a suitable sketch attached to it. Learned civil Judge dismissed the application on the ground that the prayer for the appointment of a Commissioner is frivolous inasmuch as the boundaries of the suit property were clear from the plaint sketch though regarding the western boundary the plaint sketch was silent. He further held that the said sketch was sufficient for the purpose of the suit.
3. Aggrieved by the same the Revision Petitioner contends that it is essential that appointment of a Commissioner be made by Court as otherwise it would be difficult to decide the matters in issue in the case.
4. If the dispute relates to the accuracy of the sketch filed along with the suit, the need for appointment of a Commr. will arise only after parties have adduced evidence in regard to matters in issue in the suit. Under R. 9 of O. 26 of C.P.C.,1 power is conferred on the Court for appointment of a Commissioner for local inspection in order to better appreciate the evidence which is already on record. Only when the parties agree that a report of the Commissioner so appointed to discover the existence or non-existence of a fact will bind both the parties that the Court shall appoint a Commissioner. There are authorities to support this view. In similar cases, I have already taken the view that the power exercised by the Court under O. 26, R. 9 is discretionary and just because that discretionary power is not exercised by the court below, this Court cannot interfered under S. 115 of the C.P.C.
5. Further, it will be open to the defendant-petitioner to make another application at the appropriate stage for appointment of a Commissioner if evidence on record does not clarify the issues before the Court. Therefore, this Revision Petition is rejected.
6. Petition dismissed.