LAW FOR ALL

Or.26, rule 9 CPC Advocate-Commissioner to gather evidence not maintainable = it is the pleaded case of the petitioner that the respondents have occupied a part of the public street and raised constructions. Unless the petitioner has relevant evidence in his custody, he is not expected to file the suit. Being the plaintiff, the initial burden is on the petitioner to prove the plaint averments by adducing cogent oral and documentary evidence. Even though Order XXVI Rule 9 CPC envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit. Though the petitioner has filed his chief-examination affidavit in November, 2010, he has not even started adducing his evidence. Therefore, on the facts of this case, I am in agreement with the observation of the Court below that the petitioner has filed the application for appointment of a Commissioner to gather evidence instead of discharging his burden by adducing independent evidence.