ORDER : SUJIT NARAYAN PRASAD, J. 1. The instant Civil Miscellaneous Petition has been preferred under Article 227 of the Constitution of India, for setting aside the order dated 15.06.2023 passed in Title Suit No. 42 of 2008 by learned Senior Civil Judge-IV, Dumka, whereby and where under the petition dated 11.05.2023 filed by the plaintiffs (petitioners herein) under Order XXVI Rule 9 and 10 of Code of Civil Procedure (here in after to be referred as C.P.C), for appointment of Survey pleader Commissioner in order to measure the plots in dispute, has been rejected. Brief facts of the case: 2. It is the case of the petitioners, as per the pleading made in the instant petition, that the plaintiffs (petitioners herein) being the grandsons of the recorded tenants of the disputed plots in question, have filed the T.S. No. 42 of 2008 for declaration that the lands appertaining to Jamabandi No. 43 of Mc Pherson Settlement of Mauza Rasikpur, being Plot no. 431, 432, 437, 438 and 439 having a total area measuring 1 Bigha 13 Kattha 8 Dhur, are the ancestral property of the plaintiffs which are recorded in the names of Pran Mahto, and Jhagru Mahto. It is stated that the defendants (respondent herein) with a view to grab the schedule property have begun encroachment by illegal construction of boundary wall over it, in the garb of a sale deed no. 171 of 1940, wherein there is no Plot number mentioned and as such are trying to dispossess the plaintiffs. 3. It is further stated that the defendants had filed written statement in aforesaid title suit being T.S. No. 42 of 2008 and the case of the defendants is that the defendants are claiming right over Plot nos. 437 and 438 of Mouza Rasikpur by way of sale deed executed by the Ex- landlord of Mouza Rasikpur in their favour in the year 1940 and hence the defendants are constructing boundary wall on the above-mentioned plots, as such, the claim of encroachment upon the lands of the plaintiffs are denied. 4. The suit proceeded and the documents were exhibited form both the sides. 4. The suit proceeded and the documents were exhibited form both the sides. It is the case of the plaintiffs that during the course of hearing, it transpired from paragraph 13 of the written statement as well as from the sale deed (Exhibit D), the defendants have admitted that the plots claimed by them are 437 and 438 are not mentioned in the Sale Deed no. 171/1940 nor Jamabandi number is mentioned but have stated the measurements of both the plots being 01 Bigha 13 Katha 5 Dhurs in total. However, the defendants in support of their claim, brought on record Purcha of JB No. 106 of Mouza Rasikpur No. 2 issued during Gantzer Settlement (Being Exhibit 'O') wherein the total area of Plot No. 437 is 3 Bigha, 1 Kattha and 2 Dhur and of Plot no. 438 is 1 Bigha, 10 Kattha and 17 Dhur respectively. 5. To eradicate the aforesaid anomaly, the plaintiffs filed a petition dated 11.05.2023 under Order XXVI Rule 9 and 10 of the Civil Procedure Code for appointment of Survey Commissioner for measurement of disputed plots for elucidating the matter in dispute. 6. The trial Court, after hearing the parties, has passed order on 15.06.2023 rejecting the claim of the plaintiff on the ground that it won't be expedient in the interest of justice at the late stage of final argument to re-verify it by measuring each plot by issuing commission. 7. Hence, the present petition. Submission of the learned counsel for the petitioners 8. The learned counsel appearing for the petitioners assailing the order impugned, as bad in law, contended that from bare perusal of Order-XXVI Rule-9 of the Code it would appear that Pleader Commissioner can be appointed at any stage of the suit, but the court below without considering the provisions of law erred in rejecting the said petition merely on the ground that at this belated stage such petition cannot be allowed. 9. It has further been submitted that it is well settled that the petition under Order XXVI Rule 9/10 is not “stage-centric.” The said provision can be invoked either before the commencement of trial or after that. 10. 9. It has further been submitted that it is well settled that the petition under Order XXVI Rule 9/10 is not “stage-centric.” The said provision can be invoked either before the commencement of trial or after that. 10. In support of his contention, learned counsel relied upon the judgment as rendered by the Hon’ble Apex Court in M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit and Others vs. M/s. Modi Transport Service, 2022 Live Law (SC) 471 wherein the Hon’ble Apex Court has held that Order XXVI Rule 9 of the CPC gives wide power to the Court to appoint a commissioner to make local investigation which may be required or proper for elucidating any matter in dispute. 11. It is also submitted that the trial court erred in not considering the fact that ascertaining the status of the land, local investigation was essential for proper adjudication of the dispute between the parties. 12. In the aforesaid premise the learned counsel for the petitioners has submitted that the impugned order and the reason assigned for rejecting the application of the petitioners dated 11.05.2023 has no value in the eye of law as such requires interference of this Court. Discussion: 13. This Court after hearing the learned counsel for the petitioners and looking to the factual aspect involved in this case, deems it fit and proper to look into the legality and propriety of the impugned order to discuss about the provision of Order 26 Rule 9 which reads as hereunder: “R. 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 therein 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.” 14. 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.” 14. It is evident from the aforesaid provision that the object of local investigation under Rule 9 is to elucidate 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 therein to the Court. 15. Further it is well settled that the object of local investigation by appointing Commissioner is not to collect evidence which can be adduced in the Court. A Commissioner will not be in a position to determine the question as to who is in possession of the property. It is the Court, who has to decide the matter on the basis of evidence to be adduced by the parties or the evidences already on record. 16. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Praga Tools Corporation Ltd. vs. Mahboobunnissa Begum, (2001) 6 SCC 238 . The relevant paragraph of the aforesaid judgment is being quoted herein under: “12. The State of Andhra Pradesh has filed objections to the findings of the trial court. On behalf of the appellants and the State of Andhra Pradesh it was submitted that the trial court could not have discarded the findings of the Court Commissioner. It was submitted that as per the orders of this Court, it was only this Court which could hear objections on the report of the Commissioner. We see no substance in this submission. This Court had directed the trial court to record findings. The trial court may have appointed a Commissioner to carry out survey but ultimately the findings had to be recorded by the trial court. The report of the Commissioner could only be an aid to the trial court in arriving at its findings. The trial court has allowed parties to lead oral as well as documentary evidence. The trial court has complied with the directions of this Court.” 17. The report of the Commissioner could only be an aid to the trial court in arriving at its findings. The trial court has allowed parties to lead oral as well as documentary evidence. The trial court has complied with the directions of this Court.” 17. The issue pertaining to provision of Order XXVI Rule 9 of the C.P.C. has also fell for consideration before the various High Courts, reference in this regard may be made to the order passed by the Uttrakhand High Court in the case of Rajesh Kumar Gautam vs. M.M.V.G. Ashram, AIR 2004 U’Chal 30 (31), wherein, it has been observed that purpose of getting report from Survey Knowing Commissioner to find out the present physical possession and the land in dispute and to find out the actual State of Affairs in between the parties and the appointment of Survey Knowing Commissioner for that purpose will not bound to collect the evidence rather it will be elucidated any matter in dispute. Of course, there is an issue for collecting evidence on behalf of the parties but there is no bar for explaining the situation and elucidating the disputed possession of the land, that too in a situation where the parties are claiming for encroachment of land by other side. 18. In the case of K. Raghunath Rao vs. Smt. Tumula Jai Laxmi, AIR 1988 Orissa 30, the Hon’ble Apex Court has held as under: “…..Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures form the normal rule for issue a commission also. For illustration: Where evidence is necessary to know the depth of water in a particular season a commissioner can be deputed even though evidence has not been recorded. Where it is to be found as to on which plot the disputed land lies, a writ can be issued to nay person to relay the same even though no evidence is 4 required if the Court finds that the parties themselves cannot produce evidence to that effect. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. This much can be said that the basic prerequisite for issue of such a writ is the satisfaction of the Court that a local investigation is requisite or proper. This satisfaction is to be judicial satisfaction based on reason.” 19. Similarly, in the case of Saraswathy vs. Viswanathan, 2002 (2) CTC 199 , it has been held that object of appointment of Commissioner is not to collect evidence but to elucidate matter which are local in character and which can be done only by local investigation at spot. 20. However, it is equally settled connotation of law that an application for local investigation cannot be allowed when it is filed after the evidence is over and the case is at the stage of argument since it is filed only to fill up the lacuna in the evidence and to fish out evidence. 21. Reference in this regard may be taken from the judgments as rendered in the case of Tulamaya Chettri vs. Younarayan Pradhan, (2004) 3 CCC 318, wherein at paragraph 4, it has been held as under: “4. Order 26, Rule 9, CPC authorises the Court to appoint a commissioner if it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for other reasons mentioned therein. The matter is thus left to the discretion of the Court. The discretion is however a judicial one and not an arbitrary exercise of the power. The object of such appointment is to obtain evidence from the spot itself which helps the Court to properly understand and assess the evidence on record. The report submitted by the Commissioner is a piece of evidence which has to be considered along with other evidence on record. In Mahendranath Parida vs. Purnananda Parida, AIR 1988 Orissa 248, Justice R.C. Patnaik (as he then was) pithily observed as follows (Para 4) “No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. In Mahendranath Parida vs. Purnananda Parida, AIR 1988 Orissa 248, Justice R.C. Patnaik (as he then was) pithily observed as follows (Para 4) “No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute.........” Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage, or if the motion is mala-fide or in circumstances justifying refusal. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence.” (Emphasis supplied) Ordinarily we would not have interfered with an order appointing an amin commissioner but in the case at hand parties have closed their evidence and when the matter was at the stage of arguments the respondents came up with prayer for appointment of a commissioner. In view of the admitted fact that parties have already closed their evidence, acceding to the prayer for appointment of an am in commissioner at this belated stage would amount to permitting the respondents to fill up lacunae in their evidence thus leading to a roving inquiry. A learned single Judge of the Calcutta High Court in Satish Agarwal vs. Tirath Singh, 1996 AIHC 1761 has held that when the matter awaits arguments, the prayer made by the defendants for local investigation, if allowed would amount to filling up lacunae in their evidence and such prayer should not be allowed. 22. Further, the Hon’ble Apex Court in the case of Nazir Hassan Khan vs. A. Rao, AIR 2004 Kant 92 has been held as under: 2. The learned Judge has pointed out in the order passed that the suit is of the year 1991. The evidence of the plaintiff was commenced on 4-11-1996 and the evidence was closed on 22-2-1999. 22. Further, the Hon’ble Apex Court in the case of Nazir Hassan Khan vs. A. Rao, AIR 2004 Kant 92 has been held as under: 2. The learned Judge has pointed out in the order passed that the suit is of the year 1991. The evidence of the plaintiff was commenced on 4-11-1996 and the evidence was closed on 22-2-1999. In the course of these three years, if the plaintiff and the learned Advocate desired that any Commissioner was necessary or desirable, it was at this point of time that the application ought to have been made and most certainly before the plaintiff's evidence was closed. If the application was justified, the court would have granted it or else it could have been rejected. Thereafter, the defendant's evidence was taken up and this was also closed on 19-9-2000 and the order-sheet shows that the case was posted to 10-10-2000 for arguments. The present application has been filed on 2-11-2000 i.e., three weeks after the trial has reached the stage of finality and the case was fixed for arguments. To my mind, it is necessary that all applications of this type even if they are bona fide and genuine, have to be filed at a proper point of time in the proceedings. This is very necessary also from the point of view of the stage of the proceedings because, the learned trial Judge is perfectly right when he pointed out that if this application were to be entertained, even assuming that was the position, it would mean that the trial which has reached the argument stage, would get dilated, evidence will have to be reopened and all the procedures from that stage onwards would again have to be re-commenced. The law does not permit such ill-timed applications which would only have the effect of disrupting the trial and dilating the proceedings. The Courts have been virtually struggling to ensure that civil proceedings are heard and disposed of within a reasonable time and applications of this type only disrupt the proceedings and dilate them. Under these circumstances, not only was the trial Court fully justified but, to my mind, the challenge presented through the Civil Revision Petition to that order is totally misconceived. Having regard to this position, the Civil Revision Petition is dismissed with costs quantified at Rs. 1,000/-. 23. Under these circumstances, not only was the trial Court fully justified but, to my mind, the challenge presented through the Civil Revision Petition to that order is totally misconceived. Having regard to this position, the Civil Revision Petition is dismissed with costs quantified at Rs. 1,000/-. 23. The aforesaid judgments thus reflect that the Commissioner can be appointed not to collect the evidence but to elucidate the matters which are local in character and it can be done only by local investigation at spot, further it may not to allow to appoint at the stage of argument otherwise it will be felt to fill up the lacuna in the evidence. 24. On the basis of this position of law, now the factual aspect involved in this case is appreciated by this Court, wherefrom, it is evident that after closure of witnesses of both the parties, the case was fixed for final argument and after completion of the defendant's argument, the suit was posted for argument on behalf of the plaintiff and thereafter, plaintiffs field a petition under Order XXVI Rule 9 and 10 read with section 151 of the Code for appointment of the commissioner on the basis of evidence as led by the defendant. 25. The Court after hearing both the parties passed the order impugned rejected the prayer for appointment of Commissioner holding that allowing the petition would amount to collecting evidence on behalf of the plaintiff at this belated stage. 26. Thus, from the aforesaid fact it is evident that at the stage of final argument, in a suit for declaration of right, title and interest of the plaintiff, appointment of a Commissioner would not assist or elucidate the court in adjudicating the controversy involved in the suit, which primarily revolves around rival claims for title. 27. In the instant case both the parties have staked title over the suit properties. Apparently, both the parties have adduced their evidences and after closure of the same, defendant has completed his argument. It was the plaintiffs' turn to argue the case when the aforesaid petition for appointment of Commissioner was filed. Obviously, it is filed only to fill up the lacunae in the evidence and to fish out the evidence which cannot be allowed. 28. Hence, there is no need to appoint the Commissioner to demystify or to elucidate the matter in dispute. Obviously, it is filed only to fill up the lacunae in the evidence and to fish out the evidence which cannot be allowed. 28. Hence, there is no need to appoint the Commissioner to demystify or to elucidate the matter in dispute. The court below has considered the evidences available on record and found it sufficient to deal with the issues, rightly rejected the prayer of the petitioners. 29. The learned counsel for the petitioner has not pointed out any plausible ground or cogent reason to interfere with the order impugned. 30. Reference of the judgment made by the learned counsel for the petitioners, as rendered by the Hon’ble Apex Court in M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit (supra), would not assist the case of the petitioners in assailing the impugned order dated 15.06.2023 because of the facts of the referred case is entirely different from the fact of the instant case. In the referred case the panch/commissioner has been appointed by the Court on the consent of the parties at the very preliminary stage of the lis and parties were directed to submit the bill as well as receipt to scrutinize the concern accounts but in the instant case the application under order 26 Rule 9 has been filed at the very belated stage of the case. 31. It is further settled proposition of law that that each and every case is to be tested on the basis of facts and circumstances involving the case, as has been held by Hon’ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu and Others, (2014) 5 SCC 75 at paragraph 47 which is quoted hereunder as: “47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.” 32. Since the instant petition has been filed under Article 227 of the Constitution of India thus this Court also intends to go through the scope of Article 227 of the Constitution of India. 33. Since the instant petition has been filed under Article 227 of the Constitution of India thus this Court also intends to go through the scope of Article 227 of the Constitution of India. 33. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patii, (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee, AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limitless power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 34. The power of superintendence is not to be exercised unless there has been: (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 35. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala vs. Phiroz N. Bhatena, (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. 36. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 37. 36. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 37. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani vs. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 38. On the basis of the discussion made herein above and taking in to consideration of settled connotation of law, it is the considered view of this Court that the trial Court has not committed any error in passing the impugned order dated 15.06.2023 warranting interference by this Court under Article 227 of the Constitution of India, since the Court has exercised its discretionary power which is within its jurisdiction and suffer from no error. 39. Accordingly, the Civil Miscellaneous Petition, being devoid of any merit, is hereby dismissed. 40. Pending Interlocutory Applications, if any, stand disposed of.