MATI SABITRI DEVI Vs. BANAMBAR ROUT

JUDGEMENT

(1.) THIS is the second journey of the plaintiff to this Court in respect of an application for deputation of a Pleader Commissioner under Order 28, Rule 9 of the Code of Civil Procedure1908 (in short the 'CPC').

(2.) THE plaintiff prayed for deputation of a Pleader Commissioner to find out about existence of windows on the western side rooms of the plaintiff adjacent to the eastern wall of the defendants. When the prayer was first refused, the matter was the subject -matter of adjudication in Civil Revision No. 225 of 1991, which was disposed of with a direction to the learned Munsif to consider whether the prayer can be granted. At that time the petition was rejected on the ground that the trial had reached at the fag end there was no justifiable reason to accept the prayer. The direction as aforesaid was given since the submission of the defendants -opp. parties was to the effect that the Court on consideration of the fact that evidence had already been led, was satisfied about non -necessity of deputing a Pleader Commissioner. Since this reason was not indicated for refusal, Order for reconsideration was made. After fresh consideration, the learned Munsif has again refused to accept the prayer for deputation of a Pleader Commissioner and has recorded a categorical finding that from the evidence he was satisfied that the controversy of the parties can be decided on the basis of the existing evidence on record.

(3.) THE object of the relevant provision is not to collect evidence which can be taken in Court, but to obtain evidence which from its very peculiar nature can only be had on the spot.(See 39(1973)CLT 180=AIR 1973 Orissa 240 : Debendranath Nandi v. Natha Bhuyan :). The provision empowers a Court to depute a Civil Court Commissioner for local investigation in a suit if it is deemed proper for the purpose of elucidating any matter In dispute. (See 1986 ( II) OLR 69, 63 (1987) CLT 680= AIR 1983. Orissa 52: Chaitan Das v. Purnabasi Patnaik and Ors.). When the Court feels that the materials available on record are not adequate for a proper adjudication, it may direct deputation of a Commissioner to get the evidence. This discretion is to be exercised by the Court keeping in view the nature of the dispute and the adequacy of the materials and evidence on record for due and proper adjudication. If the Court feels that the materials are sufficient, in normal course interference by exercising revisional jurisdiction would not be appropriate. For invocation of revisional jurisdiction there must be an error relating to jurisdiction committed by the lower Court, either by way of assumption of jurisdiction which it does not have, or failure to exercise jurisdiction illegally or with material irregularity. The exercise of revisional power is discretionary and an appellant invoicing the jurisdiction must show not only that there is a jurisdictional error, but also that the interest of justice calls for any interference. In an appropriate case an application can he made in the appellate Court and the refusal by the trial Court can also be a ground of attack if the adjudication is adverse to a party, in an appeal Under Section 105 and Order 43, Rule 1 -A, CPC. Similar view was expressed by this Court in AIR 1989 Orissa 118: Basanta Kumar Swain v. Baidya Kumar Parida and Ors. I therefore, do not find any scope for interference in this Civil Revision which is accordingly dismissed. No costs.