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2024 DIGILAW 572 (JHR)

Rajendra Prasad Mahto v. Juha Bala Devi

2024-06-14

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : Sujit Narayan Prasad, J. Prayer 1. This Civil Misc. petition under Article 227 of the Constitution of India, has been preferred against the order dated 18.08.2023 passed by the learned Principal District Judge, Bokaro in Civil Appeal No.11 of 2010, by which, the petition dated 23.03.2023 filed under Order XLI Rule 27 of the CPC and also, the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC on behalf of the appellant for adducing additional evidence and appointment of Survey Knowing Pleader Commissioner, has been allowed. Facts 2. The brief facts of the case, as per the pleading made in the instant petition, is required to be enumerated, which reads as under:- 3. It is the case of the petitioner that Title Suit No. 30 of 2001/38 of 2006 has been filed by the plaintiffs/respondent against the defendant/petitioner praying there in a decree for declaration of right, title and confirmation of possession over the suit property, and other reliefs. 4. It is the further case that lands measuring an area of 1.09 acres purchased by the defendant Babuchand Mahto and the lands measuring an area of 0.21 acres jointly purchased by Raman Chanda Jha and Dhurlal Mahto of plot no. 74 under khata no.01 situated at Village Tand Mohanpur P.S. Jaridih, District Bokaro by virtue of Registered deed of sale No.8128 dated 26.08.1972. After purchased the said land, the purchasers came into possession over their purchased land and mutated their name in the revenue record and they have been jointly paid rent to the State government. 5. The case of the plaintiff/respondent is that in the year 1980, all the said purchasers, namely, Babuchand Mahto, Raman Chandra Jha and Dhurlal Mahto partitioned the purchased land and separately came into possession in their respective share. The further case of the plaintiff/respondent is that Raman Chandra Jha transferred his entire land i.e. 0.10, 1/2 acres which fell into his share to the plaintiff Smt. Juhu Bala Devi and her sons by virtue of Registered deed of sale dated 08.09.2000. 6. The further case of the plaintiff/respondent is that Raman Chandra Jha transferred his entire land i.e. 0.10, 1/2 acres which fell into his share to the plaintiff Smt. Juhu Bala Devi and her sons by virtue of Registered deed of sale dated 08.09.2000. 6. The further case of the plaintiff/respondent is that on 07.06.2001, the defendant started to amalgamate Schedule-C land and making construction of house over the suit land and consequently plaintiff filed a case under Section 144 of the Criminal Procedure before the Sub-divisional Magistrate, Bermo at Tenughat against the defendants which is dropped by the learned S.D.M., Bermo at Tenughat by observing that the dispute is of civil nature. 7. Thereafter, the defendant appeared and contested the suit by filing their written statement mainly on the grounds that the land described in schedule-c land of the plaint is not correct. The further case of the defendants is that plaintiff never came in possession over the purchased land. The further case of the defendant is that land measuring an area of 01.09 acres of land has been closed by erecting compound wall in the year 1973-74 by the defendants and since then they are coming in peaceful possession over the said land and the plaintiffs are not entitled to any relief. 8. The Title Suit No. 30 of 2001/38 of 2006 has been dismissed by terms of judgment dated 30.10.2010 passed by Munsif, Bermo at Tenughat. 9. Against the said judgment dated 30.10.2010 the plaintiffs/appellant filed appeal being Civil Appeal No. 11 of 2010 before the learned Principal District Judge, Bokaro. 10. Thereafter, the appellant has filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment in the plaint which has been rejected by the learned court below against which the plaintiffs filed W.P. (C) No. 5817 of 2012 and the same has been dismissed by this Court. 11. Again, the plaintiffs /appellants filed an application under order XLI Rule 27 of Civil Procedure Code for adducing additional evidence of certified copy of sale deed dated 17.11.2006 which has been rejected by the learned court below, against which, the plaintiffs filed W.P. (C) No. 2553 of 2013 and the same has been dismissed by this Court vide order dated 02.09.2022. 12. 12. The appellants again in third round of their attempt, during the pendency of above Civil Appeal No.11 of 2010, filed again an application dated 23.03.2023 under Order XLI Rule 27 of Civil Procedure Code and application for appointment of Survey Knowing Pleader Commissioner on 04.07.2023, against which, rejoinder has been filed by the defendants/respondents on 17.07.2023. 13. The learned Principal District Judge, Bokaro allowed both the application filed by the appellants without properly considering the materials available on the record and the relevant provisions of law by terms of order dated 18.08.2023. 14. It is the case of the defendant/petitioner that the application filed by the appellants for adducing additional evidence is barred by the principles of res judicata in as much as earlier also petition for adducing same additional evidence has been rejected by the learned trial court and the same has been affirmed by this Court in W.P. (C) No. 2553 of 2013 and the learned court below has misconstrued the provision contained in Order XLI Rule 27 of the Code of Civil Procedure. 15. Being aggrieved with the aforesaid order dated 18.08.2023, the petitioner has filed the instant petition. Arguments of the petitioner 16. Mr. Sandeep Verma, learned counsel for the petitioner, while assailing the impugned order has taken the ground issue wise, since, by the common order, two petitions have been dealt with, first is the petition dated 23.03.2023 under Order XLI Rule 27 of CPC and second is the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC. 17. The following grounds have been taken in assailing the order passed in petition dated 23.03.2023 as under Order XLI Rule 27 of Civil Procedure Code that:- (i) It has been contended that the appellants earlier to the petition dated 23.03.2023, has filed a petition for adducing additional evidence by way of insertion of sale deed no.2610 dated 17.11.2006. But the same was rejected vide order dated 18.06.2012. The appellants have challenged the same by filing writ petition being W.P.(C) No.2553 of 2013 by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. But the same was rejected vide order dated 18.06.2012. The appellants have challenged the same by filing writ petition being W.P.(C) No.2553 of 2013 by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. This Court has disposed of the said petition vide order dated 02.09.2022 by affirming the order dated 18.06.2012, however, the observation has been made to consider the additional document, i.e., the sale deed no.2610 dated 17.11.2006 in view of the Order XLI Rule 27(b) of the Civil Procedure Code, based upon the judgment passed by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148 . The order passed by the High Court has not been assailed before the Higher Forum. The appellants, thereafter, have filed a petition under Order XLI Rule 27 of the CPC for adducing additional evidence by way of insertion of sale deed no.2610 dated 17.11.2006. (ii) The learned appellate court, even after taking note of the order passed by the high court, wherein, the same prayer for insertion of the same document has already been dealt with by dismissing the writ petition, by which, the order passed by the learned appellate court, has been affirmed, but, in a highly arbitrary and illegal manner, fresh petition filed under Order XLI Rule 27 of the CPC has been allowed only on the basis of the submission made on behalf of the parties and making observation that for the ends of justice, one opportunity is to be granted to the appellants. (iii) Learned counsel for the petitioner has submitted that once the issue has already been decided by rejecting the same relief, which has been affirmed by the High Court under Article 227 of the Constitution of India, it is not available for the appellate court to pass the order afresh by insertion of sale deed no.2610 dated 17.11.2006. 18. According to the learned counsel, it is incorrect order but as also, the order passed by the learned court is highly contemptuous, since, the impugned order pertaining to the petition dated 23.03.2023 filed under Order XLI Rule 27 of the CPC has been passed sitting over upon the order passed by the High Court. Arguments of the respondents 19. The respondents had appeared being represented by Mr. V.P. Singh, learned Senior Counsel for the respondents. 20. Arguments of the respondents 19. The respondents had appeared being represented by Mr. V.P. Singh, learned Senior Counsel for the respondents. 20. It has been contended by the learned Senior Counsel by making reference of paragraph-49 of the judgment rendered by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra) that the order passed by the learned appellate court, cannot be said to suffer from an error. 21. It has been contended that based upon the observation made by the writ Court, a fresh order has been passed by the learned appellate court and in that view of the matter, the said order so far as dealing with the petition dated 23.03.2023 cannot be said to suffer from an error. Arguments of the petitioner 22. So far as the second issue, i.e., petition dated 04.07.2023 is concerned, learned counsel for the petitioner has submitted that allowing the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC is also not sustainable in the eye of law, due to the very reason that scope of Order XXVI Rule 10A read with Section 151 of the CPC is not meant for searching out the evidence, rather, the suit is to be decided on the basis of the pleading and the evidence which is to be led in course of trial. 23. The learned trial Court has also not appreciated the scope of Order XXVI Rule 10A read with Section 151 of the CPC and for the purpose of giving an opportunity to create the evidence, such direction has been passed. 24. The argument has been advanced with respect to the observation so made while allowing the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC that there is land dispute between the parties and for the ends of justice, it is necessary to appoint Survey Knowing Pleader Commissioner to measure the disputed land. Such observation which led the learned appellate court in allowing the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC, cannot be said to be just and proper, rather, in the dispute, which is the subject matter of the lis, is to be decided based upon the pleading and by leading evidence on behalf of the parties. 25. 25. Learned counsel for the petitioner has submitted that it is onus upon the parties concerned to substantiate the case based upon the pleading and the evidence and the same cannot be cut-short by seeking a direction by the court of law by filing petition under Order XXVI Rule 10A of the CPC in order to create evidence. 26. Learned counsel for the petitioner, based upon the said arguments, has submitted that the order which has been passed on petition dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC, therefore, suffers from an error and hence, not sustainable in the eye of law. Argument of the Respondents 27. Learned Senior Counsel appearing for the respondents on the aforesaid issue has taken the following grounds in defending that part of the order, by which, the petition filed under Order XXVI Rule 10A read with Section 151 of the CPC has been allowed:- (i) It has been submitted that such decision has been taken by the learned appellate court considering the dispute having over the land in question and for the ends of justice, the Survey Knowing Pleader Commissioner, has been directed to be appointed, hence, the same cannot be said to suffer from an error. (ii) It has been contended that the provision of Order XXVI Rule 10A of the CPC, by which, the petition has been filed to have the measurement of the land, the same cannot be said that the learned appellate court, while passing such order, has passed an unjustified order. 28. So far as the contention made on behalf of the petitioner that the Order XXVI Rule 10A of the CPC is not meant for creation of evidence which is not applicable in the facts and circumstances of the case, since, it is wish of the Court to have the report from the Survey Knowing Pleader Commissioner and hence, the order impugned cannot be said to suffer from an error. Analysis 29. This Court has heard the learned counsel for the parties and gone across the finding as available in the impugned order. 30. It is evident from the impugned order that two petitions have been dealt with simultaneously. 31. Analysis 29. This Court has heard the learned counsel for the parties and gone across the finding as available in the impugned order. 30. It is evident from the impugned order that two petitions have been dealt with simultaneously. 31. 1st Petition is dated 23.03.2023 filed under Order XLI Rule 27 of the CPC and 2nd Petition is dated 04.07.2023 filed under Order XXVI Rule 10A read with Section 151 of the CPC. 32. Two separate arguments have been advanced on behalf of the parties, as referred hereinabove, therefore, this Court is now proceeding to examine the legality and propriety of the impugned order based upon the order passed on two different petitions. 33. The 1st petition dated 23.03.2023 filed under Order XLI Rule 27 of the CPC, has been allowed by the learned appellate court on 18.08.2023. 34. This Court, before proceeding to examine the propriety of the impugned order with respect to the present issue, deems it fit and proper to refer the provision of Order XLI Rule 27 of the CPC, which reads as under:- “Production of additional evidence in Appellate Court. – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 35. The provision of Order XLI Rule 27 of the CPC has been interpreted by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra). 36. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 35. The provision of Order XLI Rule 27 of the CPC has been interpreted by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra). 36. The very purport of Order XLI Rule 27 of the CPC has been dealt with by taking into consideration, the condition as stipulated under (a), (aa) and (b) of Order XLI Rule 27 of the CPC. 37. The Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra) has taken into consideration in entirety the entire purport of the provision of Order XLI Rule 27 of the CPC. The condition stipulated as under (a) and (aa) of Order XLI Rule 27 of the CPC have been dealt with. 38. The condition stipulated as under (a) of Order XLI Rule 27 of the CPC stipulates that if any application has been filed before the concerned court for the purpose of insertion of the additional evidence but the same has not been taken into consideration, then in such circumstances, the appellate court can exercise power under Order XLI Rule 27 of the CPC taking into consideration the condition stipulated under sub-clause (a). 39. The condition stipulated under (aa) is concerned, the same stipulates in the context of the fact that if any document was there but due to reason beyond control of the party, the same could not have been brought before the original court, then the same can be taken as additional evidence but the party concerned is required to substantiate the due diligence. 40. The Hon’ble Apex Court has further considered that in case the condition stipulated under clause (a) and (aa) are not available and even then, the document is required to be considered, then in such circumstances, the court has been conferred with the power to consider the said document at the time of pronouncement of the judgment. 41. The aforesaid aspect of the matter has been taken into consideration by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra) as under paragraph-49, for ready reference, paragraph-39 & 49 of the aforesaid judgment is being referred as under:- “39. 41. The aforesaid aspect of the matter has been taken into consideration by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra) as under paragraph-49, for ready reference, paragraph-39 & 49 of the aforesaid judgment is being referred as under:- “39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.” “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.” 42. The aforesaid insertion of the legal position is required due to the factual situation herein that the petition which has been allowed for the purpose of insertion of additional evidence, i.e., the sale deed no.2610 dated 17.11.2006. A similar petition was filed on 14.12.2011 for insertion of sale deed no.2610 dated 17.11.2006 but the same was rejected vide order dated 18.06.2012. A similar petition was filed on 14.12.2011 for insertion of sale deed no.2610 dated 17.11.2006 but the same was rejected vide order dated 18.06.2012. The order dated 18.06.2012 was challenged before this Court by filing writ petition being W.P.(C) No.2553 of 2013 invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India. 43. The said writ petition was dismissed upholding the order dated 18.06.2012 passed by the learned appellate court, as would be evident from paragraph-16 of the said order, which is the part of the paper book. 44. Further, an observation was made at paragraph-24 of the order passed in W.P.(C) No.2553 of 2013, in view of paragraph-39 & 49 of the judgment rendered by the Hon’ble Apex Court in the case of Union of India Vrs. Ibrahim Uddin & Anr. (supra) pertaining to consideration of the document in view of the condition stipulated under clause (b) of Order XLI Rule 27 of the CPC, for ready reference, paragraph-24 of the order passed in W.P.(C) No.2553 of 2013 is being referred as under:- “24. This Court, after going through the observations made at paragraph-39 as also paragraph-49, is of the view that the Hon'ble Apex Court while dealing with the provision of Order XLI Rule 27 of the CPC has laid down a test said to be “true test” to be adjudged by the appellate court as to whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. Therefore, this Court is of the view that it would not be appropriate to pas order as per the submission made on behalf of the learned counsel for the petitioner by directing the appellate court to consider the said document in the light of the provision of Order XLI Rule 27 rather leaving it open upon the appellate court to consider the said document in view of the observation at paragraph-49 of the judgment in Union of India vs. Ibrahim Uddin and Anr. (supra).” 45. The appellants again have filed a petition on 23.03.2023 under Order XLI Rule 27 of the CPC for insertion of sale deed no.2610 dated 17.11.2006. (supra).” 45. The appellants again have filed a petition on 23.03.2023 under Order XLI Rule 27 of the CPC for insertion of sale deed no.2610 dated 17.11.2006. The petitioner/respondent/defendant has made serious objection by brining to the notice of the learned appellate court that the said petition for insertion of sale deed no.2610 dated 17.11.2006 has already been dismised, which has attained its finality by the order passed by the High Court in W.P.(C) No.2553 of 2013 on 02.09.2022, as such, the same petition is not maintainable. 46. The learned appellate court in a highly peculiar manner has allowed the petition by insertion of sale deed no.2610 dated 17.11.2006, in spite of that the order passed on earlier occasion dated 18.06.2012 has already been upheld by the High Court in exercise of power conferred under Article 227 of the Constitution of India. 47. The impugned order, so passed, by the learned court is not sustainable in the eye of law. 48. Accordingly, the order dated 18.08.2023 passed by the Principal District Judge, Bokaro in Civil Appeal No.11 of 2010 so far as it relates to the order, by which, the petition dated 23.03.2023 filed under Order XLI Rule 27 of the CPC has been allowed, is hereby quashed and set aside. 49. So far as the 2nd issue pertains to allowing of the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with 151 of the CPC is concerned, the said petition has been allowed by taking into consideration the fact that since there is land dispute between the parties and for the ends of justice, the learned appellate court has thought it necessary to appoint Survey Knowing Pleader Commissioner to measure the disputed land. 50. The question of scope of the provision of Order XXVI Rule 10A of the CPC has been raised on behalf of the petitioner. 51. This Court, in order to appreciate the said argument, deems it fit and proper to refer the provision of Order XXVI Rule 10A of the CPC, which reads as under:- “10A. Commission for scientific investigation. 50. The question of scope of the provision of Order XXVI Rule 10A of the CPC has been raised on behalf of the petitioner. 51. This Court, in order to appreciate the said argument, deems it fit and proper to refer the provision of Order XXVI Rule 10A of the CPC, which reads as under:- “10A. Commission for scientific investigation. (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.” 52. Thus, it is evident that Order 26 Rule 10-A stipulates that where any issue in a suit involves any scientific investigation which cannot in the opinion of the court be conveniently conducted before the court, the court may, if it thinks necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit directing them to inquire into such question and report thereon to the court. Under sub-rule (2) of Rule 10-A, the provisions of Rule 10 of the order shall, as far as may be, apply in relation to a Commissioner appointed under the Rule as they apply to a Commissioner appointed under Rule 9. 53. Therefore, at this juncture, Rules 9 and 10 of Order 26 therefore assume relevance and are extracted hereinbelow:- “9. Commissions to make local investigations. 53. Therefore, at this juncture, Rules 9 and 10 of Order 26 therefore assume relevance and are extracted hereinbelow:- “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 thereon 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. 10. Procedure of Commissioner.—(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.— Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 54. The Hon’ble Apex Court has interpreted the scope and purport of the provision of Order XXVI Rule 10A of the CPC in the case of Anjuman Intezamia Masajid (Gyanvapi Mosque Committee) v. Rakhi Singh, (2024) 3 SCC 336 and has observed that ordinarily a scientific survey ought not to be ordered until the court is cognizant of the issues that would arise in the suit. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:- “12.5. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:- “12.5. While an order for conducting a scientific investigation or survey under Order 26 Rule 9 may be passed at any stage, ordinarily a scientific survey ought not to be ordered until the court is cognizant of the issues that would arise in the suit.” 16. In terms of Order 26 Rule 10, the Commissioner has to submit a report in writing to the court. The report of the Commissioner and the evidence taken by him constitute evidence in the suit and form a part of the record. However, the court and, with its permission, any of the parties may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in the report or as regards the report including the manner in which the investigation has been made. The court is also empowered to direct such further inquiry if it is dissatisfied with the proceedings of the Commissioner. The evidentiary value of any report of the Commissioner is a matter to be tested in the suit and is open to objections including cross-examination. A report of the Commissioner does not by and of itself amount to a substantive finding on matters in dispute and is subject to the process of the court during the course of the trial.” 55. Further in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) vs. Suresh Das, (2020) 1 SCC 1 while interpreting Rule 10-A(2) of the order 26 the Hon’ble Apex Court has observed as under: “657.2. Rule 10-A(2) which applies the provisions of Rule 10, in its application to a Commissioner appointed under Rule 9, to a commission for scientific investigation contains the expression “as far as may be”. These words comprehend the notion of that which is practicable, and to the extent feasible for the purpose of fulfilling the power which is conferred upon the court to issue or appoint a commission.” 56. 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. 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. 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. 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. Reference in this regard may be made to the judgment passed by the Hon’ble Apex Court in the case of Praga Tools Corpn. Ltd. v. Mahboobunnissa Begum, (2001) 6 SCC 238 . The relevant paragraph of this judgment is being quoted as 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.” 57. Further the issue pertaining to provision of Order 26 Rule 9 of the C.P.C. fell for consideration before the various High Courts, reference in this regard may be made of an order passed by the Uttarakhand High Court rendered in the case of Rajesh Kumar Gautam Vrs. M.M.V.G. Ashram, reported in 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. 58. In the case of K. Raghunath Rao Vrs. Smt. Tumula Jai Laxmi, reported in AIR 1988 Orissa 30, wherein, it has been held that:- “…..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 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. 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” 59. In the case of Saraswathy Vrs. Viswanathan, reported in 2002 (2) CTC 199 , wherein, 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. 60. In the case of Saraswathy Vrs. Viswanathan, reported in 2002 (2) CTC 199 , wherein, 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. 60. It is evident from the aforesaid judgments that the provision as contained under Order XXVI Rule 9 of the CPC cannot be used for the purpose of collection of the evidence, it is based upon the premise that if the litigants are before the Court of law and the onus upon one or the other litigants to make out case on their own leg and there cannot be an opportunity being given by the court to create evidence to improve the case, otherwise, the very purpose of trial which is based upon the pleading of the parties and the evidence which is to be led on their behalf, will become redundant. 61. This Court, after having referred the very purport of the provision of Order XXVI Rule 9,10 and 10A of the CPC and coming to the reason assigned for allowing the petition dated 04.07.2023 filed under Order XXVI Rule 10A read with section 151 of the CPC that since there is land disputed between the parties and for the ends of justice, it is necessary to appoint Survey Knowing Pleader Commissioner to measure the disputed land, which cannot be said to be a valid reason for appointment of Survey Knowing Pleader Commissioner, rather, it is onus upon the parties to prove or disprove the case by leading the evidence in support of the pleading made on their behalf and in any case, such order cannot be passed for the purpose of creating the new evidence. 62. This Court, considering the scope of the aforesaid provisions based upon the interpretation made by the Court of law, is of the view that the order dated 18.08.2023 passed by the Principal District Judge, Bokaro in Civil Appeal No.11 of 2010 so far as it relates to the order, by which, the petition dated 04.07.2023 filed under Order XXVI Rule 10A of the CPC has been allowed, requires interference. 63. 63. Accordingly, the order dated 18.08.2023 passed by the Principal District Judge, Bokaro in Civil Appeal No.11 of 2010 so far as it relates to the order, by which, the petition dated 04.07.2023 filed under Order XXVI Rule 10A of the CPC has been allowed, is hereby quashed and set aside. 64. In the result, the instant petition stands allowed.