MANMOHAN SARIN ( 1 ) THE petitioner by this civil revision petition is assailing the order dated 15. 4. 1994 passed by Mrs. Seema Maini, Sub Judge, Delhi in suit No. 560 of 1978, whereby she allowed the application moved by the respondent under order 26 rule 10 C. P. C. and permitted the Local Commissioner s report together with the documents, to be admitted in the evidence: ( 2 ) THE petition raises a short but important question with which the civil courts are frequently confronted viz. , whether an ex parte report of the Local Commissioner can be admitted in evidence in terms of order 26 rule 10 (2) C. P. C. without the same being proved? The answer to this question turns on the provisions of order 26 rule 10 C. P. C. and order 26 rule 18 C. P. C. Before examining the legal provisions, the facts in brief of the case may be recapitulated:- (I) The respondent No. 1 Satish Ray Kapoor had on 25. 8. 1987 instituted a suit for permanent injunction seeking to restrain the petitioner herein i. e. defendant No. 1 in the suit from constructing a mezzanine with or without the consent of the petitioner and other respondents in Shop No. 78/3, Janpath, New Delhi. The respondent had also alongwith the suit moved an application- under order 26 rule 9 C. P. C. for appointment of a Local Commissioner to ascertain the construction alleged to have been carried out in premises in suit. The court allowed the application and appointed ex parte, a Local Commissioner to ascertain the recent construction having been made in portion of 78/3 Janpath, New Delhi. The court also directed the report to be submitted on or before 28. 8. 1987 and status quo to be maintained till then. The court, however, did not fix any date or time for the inspection of the premises by the Local Commissioner. No order for issue of notice to the petitioner and other respondents, who were defendants in the suit to be present at the time of inspection, by the Local Commissioner was passed. (II) In the event, the Local Commissioner also did not issue any notice to the petitioner or other respondents regarding his proposed inspection. The premises were inspected and a report dated 26. 8. 1987 was submitted. (II) In the event, the Local Commissioner also did not issue any notice to the petitioner or other respondents regarding his proposed inspection. The premises were inspected and a report dated 26. 8. 1987 was submitted. The proceedings of the inspection by Local Commissioner were signed by the Advocate of the respondent and the respondent. It is recorded by the Local Commissioner that there were employees of the petitioner, besides carpenters and labourers but the said employees refused to sign the proceedings. No objections were filed to the report of the Local Commissioner by the petitioner. (III) That thereafter on 20. 4. 1993, the respondent moved an application under order 26 rule 10 C. P. C. praying for the report of the Local Commissioner alongwith the supporting record be exhibited and read in evidence in terms or order 26 rule 10 (2) C. P. C. The petitioner, herein, filed a reply to the said application that the appointment of the Local Commissioner was ex parte. The report of the Local Commissioner could not be tendered in evidence without being proved. The trial court vide the impugned order dated 15. 4. 1994 allowed the application under order 26 rule 10 (2) C. P. C. ( 3 ) THE learned counsel for the petitioner contends that the Local Commissioner s inspection was done in the petitioner s absence. It is denied that any of petitioner s employees were present during the inspection and had refused to sign the report. It is urged that the Commissioner s report is absolutely vague and lacking in material particulars in this regard. No names of the employees or their designation has been mentioned. As regards the legal position Mr. Ishwar Sahai, Senior Advocate appearing for the petitioner has submitted that the provisions of order 26 rule 10 (2) C. P. C. cannot be invoked in the instant case, since the appointment of the Local Commissioner was ex parte and no notice even after the appointment was issued to the petitioner regarding the said appointment or the time and date of the inspection. Not only this the Local Commissioner also failed to issue notice to the petitioner and other parties of his proposed inspection. Not only this the Local Commissioner also failed to issue notice to the petitioner and other parties of his proposed inspection. This according to the counsel was completely in contravention of the mandate in order 26 rule 18 C. P. C. which required the Court to direct the parties to appear before the Commissioner in person or by their agents or leaders. In the absence of such notice, the report of the Local Commissioner and the evidence taken by him cannot be admitted in evidence in terms of order 26 rule 10 (1 ) (2) C. P. C. In these circumstances, the only course open is to produce the Local Commissioner in court for proving the report by leading his evidence to enable the petitioner to cross examine the Local Commissioner regarding the report. This was essential to establish the veracity thereof. Mr. Sahai further submitted that since the report was ex parte and in contravention of provisions of order 26 rule 18 C. P. C. there was no question of the petitioner filing objections to such a report. No adverse inference could be drawn from the absence of objections. In support of his contention Mr. Ishwar Sahai relied on a Division Bench judgment of this Court in Jamil Ahmed Taban and others Vs. Must. Khair- U1-Nisa and others REFERRED TO at AIR 1970 Delhi 205 and followed in case REFERRED TO at AIR 1988 Orissa 52. A Division Bench of this Court held that in case of non- compliance with the mandatory provisions of order 26 rule 18 C. P. C. , the Local Commissioner s report was without jurisdiction and the report cannot be read in evidence. Para 6 of the judgment is as follows:- "the appellants have relied upon Latchan v. Ram Krishna, AIR 1934 Mad 548 , Smt. Mandera v. Schindra Chandra, AIR 1962 Pat 211 , Vanamoorthi Pillai Veerabhadran Pillai v. Ayyamperumal Pillai Bhagavathy Pillai, AIR 1955 TC 1187 (Tra-Co) and Seetharamappa v. Appaiah, AIR 1962 Andh Pra 84 in support of the contention that in case of non-compliance with the mandatory provisions of Rule 18 the appointment of the local commissioner is without jurisdiction and the report resulting from his inspection cannot be read as evidence. We hold the same view. We hold the same view. In the cases before us no notice was given by the Court as required by rule 18 (1) nor even by the local commissioner appointed. In the circumstances, the reports Exhibits A1 and A2 cannot, without anything more, be evidence in the case by the force of Rule 10. (2 ). " ( 4 ) MR. Sahai also referred to the provisions of order 39 rules 7 and 8 C. P. C. to advance the argument that where a provision is made making an exception from issuance of notice to the parties in terms of order 39 rule 8 (3) C. P. C. , there is no parallel provision providing forthe said report to be received directly in evidence. ( 5 ) MR. S. K. Luthra appearing for the respondent does not dispute the factual position that no notice was issued to the petitioner either by the court or by the Local Commissioner. He asserts that though no notice was issued the. petitioner was in full knowledge of the inspection through his employees, who were present at the time of inspection. It is strenuously urged by him that the. petitioner even after the report having been filed on record for a period of over 5 years failed to file any objection to the said report. The petitioner accordingly is deemed to have waived any objection thereto. In these circumstances, it is urged by him that the non issuance of the notice should not come in the way of the report being received in evidence. Mr. Luthra further submits that even in the Division Bench decision referred to earlier in para (6) the words used are "in the circumstances, the reports exhibits A1 and A2 cannot, without anything more, be evidence in the case by the force of rule 10 (2)". Mr. Luthra submits that the failure of the petitioner to file objections should fall within the meaning of anything more. He also relied on 1988 RLR (SC) 501 titled Rajbir Kaur Vs. S. Chokesiri etc. , 1976 RLR 178 Harbhajan Singh Vs. Shakuntala Devi and 1944 RLR 324 Manmohan Service Station Vs. Md. Haroon. ( 6 ) THERE is force in the pleas raised by Mr. Ishwar Sahai on behalf of the petitioner. He also relied on 1988 RLR (SC) 501 titled Rajbir Kaur Vs. S. Chokesiri etc. , 1976 RLR 178 Harbhajan Singh Vs. Shakuntala Devi and 1944 RLR 324 Manmohan Service Station Vs. Md. Haroon. ( 6 ) THERE is force in the pleas raised by Mr. Ishwar Sahai on behalf of the petitioner. Non-compliance with the mandatory provisions of order 26 rule 18 C. P. C. and in the instant case non issuance of notice even by the Local Commissioner would render the report inadmissible in evidence in terms of order 26 rule 10 (2) C. P. C. The failure to file any objections to such a report would not have the effect of rendering it admissible under order 26 rule 10 C. P. C. as the same would be without jurisdiction as held by Division Bench of this Court. Moreover it would be just and equitable for the petitioner to be afforded an opportunity to cross-examine the Local Commissioner and bring out inconsistencies, if any, in the report. The authorities cited by Mr. S. K. Luthra do not advance his case any further and are not inconsistent with the decisions cited by the petitioner. ( 7 ) THE case at present is at the stage of recording of plaintiff s evidence i. e. respondent herein. Thus the respondent can conveniently without any inordinate delay in the suit, take steps to prove the Local Commissioner s report by summoning the Local Commissioner and having him examined in accordance with law. In view of the foregoing discussion, the petition is allowed and the order of the trial court dated 15th April, 1994 is set aside. The trial court record be sent back forthwith. Parties are directed to appear before the trial court on 14th August, 1995.