SOM SINGH Vs. SANTOSHI DEVI

JUDGEMENT

(1.) Heard Sri Ateeq Ahmad Khan, learned Counsel for the petitioner and perused the record. This writ petition is directed against the order dated 31.5.2012 passed by Additional District Judge/Special Judge (E.C. Act) rejecting petitioner's appeal for appointment of Commissioner for spot inspection. The Appellate Court found that firstly such a request was never made by petitioner before Trial Court and secondly the petitioner has not been able to show any obligation on the part of Court below to pass such an order and Appellate Court in its wisdom found that application submitted by petitioner is nothing but a device to delay the proceedings and to cover up the lapses in the Court below.

(2.) It is well settled that under Order XXVI, Rules 10 and 11 of Code of Civil Procedure the Court is not bound to appoint Commissioner on mere asking of parties but it is for the Court when it found necessary to appoint Commissioner for some further investigation or information, it can do so. Power of the Court to appoint Commissioner is not disputed but it is not the legal right of parties to force the Court to appoint Commissioner. A local inspection, whether necessary or not, depends on several facts, factors and circumstances which have been considered by the Court below and in absence of anything to show that Court finds it necessary to obtain Commissioner's report, such appointment cannot be forced.

(3.) Considering the aforesaid provisions a Special Bench of this Court in The Sunni Central Board v. Sri Gopal Singh Visharad,2010 3 ARC 708in the judgment delivered by (Hon. Sudhir Agarwal, J.) in paras 3749 and 3750 observed that a discretion is vested in the Court. When it is of the opinion that any local inspection or scientific investigation is required, it can order accordingly so as to help it in extracting truth. This shows that appointment of Commissioner for local inspection is not a matter of right or matter of course but it is for the Court to satisfy itself whether it is so required to extract the truth or not. If in its opinion it is not so required it cannot be compelled.