1. This is a second appeal by the plaintiffs against a decree of the-lower appellate Court by which the decree of the first Court in favour of the plaintiffs was modified. The plaintiffs sued for an injunction calling on the defendants to fill in a certain ditch alleged to have existed on a plot in the ground of the plaintiffs and for a decree for possession for the plot in dispute. The Court of first instance granted a decree. The lower appellate Court found that the ditch did not exist and granted a decree merely for possession of a certain area A B P. The appeal has been argued solely on the ground that the lower appellate Court did not comply with the provisions of Order 41, Rule 27, in regard to the taking of additional evidence. In the memorandum of appeal filed before the lower appellate Court by the defendants it was stated that it was necessary to have fresh measurements made and that the appeal might be decided after those fresh measurements had been made. This appeal was filed on 2nd June 1928. The appeal was fixed for 26th July 1928, and on that date the defendants put in a written application asking for a commissioner to be appointed to make certain measurements. On the same date an application in writing was made on behalf of the plaintiffs, and it is alleged by learned Counsel that that application objected to a new commission issuing. I have read the application, and the Peshkar of this Court read it in the sense that it was a request for a new commission to issue. On the other hand learned Counsel argues that a certain word which appears to be ' phir ' should really be read as 'nahin.' The lower appellate Court states in its judgment:
No objection had been put on behalf of the respondent either in reply to the said ground of appeal or to the application of the appellant till the appointment of commissioner by this Court.
2. It is regrettable that this sentence in English is as doubtful as the application of the plaintiff, but taking it to mean that no objection was made at any time by the respondent and in particular that no objection was made in this application, I think the lower appellate Couct had very good grounds for taking that view of the badly written application of the plain-tiffs. However that may be, it was clearly a matter within the discretion of [the lower appellate Court either to issue la commission or not to issue a commission, and I am satisfied that the lower appellate Court had sufficient reasons to issue a commission. It is true that these reasons were not recorded by the Court, as they should have been, if it had been a case of taking additional evidence under Order 41, Rule 27(b) if that rule applied. The reasons however were set forth in the memorandum of appeal. The question which has been argued at some length is whether in issuing' a commission the lower appellate Court had to act under Order 41, Rule 27. That rule refers in Rule 27(l)(a) to cases where the Court of first instance refused to admit evidence and it is clear that that was not the case in this appeal. In Rule 27(l)(b) the rule refers to where the appellate Court requires any document to be produced or any witness to be examined. Now a local investigation by a commissioner is not the production of a document as the Rule 27(1)(b) must be taken to refer to the production of a document already in existence and it could not refer to the preparation of a report by a commissioner in the future; nor is the report of a eommissioner the examination of a witness, I because the commissioner is not in general called before the Court to give evidence. For these reasons I do not consider that Order 41, Rule 27(l)(b) can be held to govern the issue of a commission for a local investigation by an appellate Court. No authority has been produced by learned Counsel for appellants to show that the issue of a commission would come under Order 41, Rule 27. On the other hand there is a special order of the Code, Order 26, which, deals with commissions, and Rule 9 of that order empowers a Court to order a local investigation by a commissioner. It was argued by learned Counsel that this rule would only authorize the trial Court to issue a commission. But Section 107 (2) stites:
Subject as aforesaid, the appellate Court shall' have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
3. This appears to mean that an appellate Court has the powers of a Court of original jurisdiction subject to any conditions and limitations which are prescribed for an appellate Court. There is no condition or limitation imposed by the Code on the issue of a commission by an appellate Court other than the conditions laid down in Order 26. The section of the Code which authorizes a Court to issue a commission for local investigation is Section 75(b). I consider that under Section 107(2) and Section 75(b) an appellate Court has power to issue a commission for a local investigation. That being so, the appellate Court is not bound to record its reasons under Order 41, Rule. 27(2) and there does not appear to be any irregularity in the present case. No other ground of appeal was pressed, and accordingly I dismiss this appeal with costs including counsel's fees in this Court on the higher scale.